PURCHASE AGREEMENT among READING INTERNATIONAL, INC., READING NEW ZEALAND, LIMITED, READING INTERNATIONAL TRUST I, and KODIAK WAREHOUSE JPM LLC Dated as of February 5, 2007
EXHIBIT
10.1
among
READING
INTERNATIONAL, INC.,
READING
NEW ZEALAND, LIMITED,
READING
INTERNATIONAL TRUST I,
and
KODIAK
WAREHOUSE JPM LLC
Dated
as
of February 5, 2007
TABLE
OF CONTENTS
|
1.
|
Definitions
|
1
|
|
2.
|
Purchase
and Sale of the Preferred Securities
|
1
|
|
3.
|
Conditions
|
4
|
|
4.
|
Representations
and Warranties of the Company and the Trust
|
6
|
|
5.
|
Representations
and Warranties of the Purchaser
|
7
|
|
6.
|
Covenants
and Agreements of the Company and the Trust
|
14
|
|
7.
|
Payment
of Expenses
|
16
|
|
8.
|
Indemnification
|
16
|
|
9.
|
Termination:
Representations and Indemnities to Survive
|
18
|
|
10.
|
Amendments
|
18
|
|
11.
|
Notices
|
18
|
|
12.
|
Successors
and Assigns
|
18
|
|
13.
|
Applicable
Law
|
19
|
|
14.
|
Submission
to Jurisdiction
|
19
|
|
15.
|
Counterparts
and Facsimile
|
19
|
SCHEDULES
AND ANNEXES
Schedule
1 - Significant
Subsidiaries
Annex
A-1 - Form
of
Company Counsel Opinion Pursuant to Section
3(b)
Annex
A-2
- Form
of
Officer’s Certificate Pursuant to Section
3(b)
Annex
B - Form
of
Tax Counsel Opinion Pursuant to Section
3(c)
Annex
C - Form
of
Delaware Counsel Trust Opinion Pursuant to Section
3(d)
Annex
D - Form
of
Property/Indenture Trustee Counsel Opinion Pursuant to Section
3(e)
Annex
E - Form
of
Delaware Trustee Counsel Opinion Pursuant to Section
3(d)
Annex
F - Form
of
Indenture
Annex
G - Form
of
Trust Agreement
Annex
H - Form
of
Officer’s Financial Certificate Pursuant to Section
6(h)
($50,000,000
Trust Preferred Securities)
THIS
PURCHASE AGREEMENT, dated as of February 5, 2007 (this “Purchase
Agreement”),
is
entered into among Reading International, Inc., a Nevada corporation (the
“Company”),
Reading New Zealand, Limited, a New Zealand corporation (“Reading
NZ”),
and
Reading International Trust I, a Delaware statutory trust (the “Trust”,
and
together with the Company and Reading NZ, the “Sellers”),
on
the one hand, and Kodiak Warehouse JPM LLC, a Delaware limited liability company
(the “Purchaser”),
on
the other hand.
WITNESSETH:
WHEREAS,
the Trust proposes to issue and sell Fifty Thousand (50,000) Preferred
Securities of the Trust, having a stated liquidation amount of $1,000 per
security, bearing distributions at a fixed rate
equal to 9.22% per annum of the liquidation amount through the distribution
payment date in April 2012 and
thereafter at a variable rate, reset quarterly, equal to LIBOR (as defined
in
the Trust Agreement (as defined below)) plus 4.00% per annum of the liquidation
amount (the “Preferred
Securities”);
WHEREAS,
the entire proceeds from the sale of the Preferred Securities will be combined
with the entire proceeds from the sale by the Trust to the Company of its common
securities (the “Common
Securities”),
and
will be used by the Trust to purchase Fifty One Million Five Hundred Forty
Seven
Thousand Dollars ($51,547,000) in principal amount of the unsecured junior
subordinated notes of the Company and Reading NZ (the “Junior
Subordinated Notes”);
WHEREAS,
the Preferred Securities and the Common Securities for the Trust will be issued
pursuant to the Amended and Restated Trust Agreement (the “Trust
Agreement”),
dated
as of the Closing Date, among the Company, as depositor, Xxxxx Fargo Bank,
N.A.,
as property trustee (in such capacity, the “Property
Trustee”),
Xxxxx
Fargo Delaware Trust Company, as Delaware trustee (in such capacity, the
“Delaware
Trustee”),
the
Administrative Trustees named therein (in such capacities, the “Administrative
Trustees”)
and
the holders from time to time of undivided beneficial interests in the assets
of
the Trust; and
WHEREAS,
the Junior Subordinated Notes will be issued pursuant to a Junior Subordinated
Indenture, dated as of the Closing Date (the “Indenture”),
among
the Company, Reading NZ and Xxxxx Fargo Bank, N.A., as indenture trustee (in
such capacity, the “Indenture
Trustee”).
NOW,
THEREFORE, in consideration of the mutual agreements and subject to the terms
and conditions herein set forth, the parties hereto agree as
follows:
1. Definitions.
The Preferred Securities, the Common Securities and the Junior
Subordinated Notes are collectively referred to herein as the “Securities.”
This
Purchase Agreement, the Indenture, the Trust Agreement, and the Securities
are
collectively referred to herein as the “Operative
Documents.”
All
other capitalized terms used but not defined in this Purchase Agreement shall
have the respective meanings ascribed thereto in the Indenture.
2. Purchase
and Sale of the Preferred Securities;
Purchaser’s Obligations.
.
(a) The
Trust
agrees to sell to the Purchaser, and the Purchaser agrees to purchase from
the
Trust, Fifty Million Dollars ($50,000,000) in aggregate stated liquidation
-1-
amount
of
Preferred Securities. The Trust shall use the Purchase Price, together with
the
proceeds from the sale of the Common Securities, to purchase the Junior
Subordinated Notes.
(b) Delivery
or transfer of, and payment for, the Preferred Securities shall be made at
11:00
A.M. New York time, on February 5, 2007 or such later date (not later than
February 5, 2007) as the parties may designate (such date and time of delivery
and payment for the Preferred Securities being herein called the “Closing
Date”).
The
Preferred Securities shall be transferred and delivered to the Purchaser in
the
amounts described in Section 2(a) hereof against the payment of the Purchase
Price to the Trust made by wire transfer in immediately available funds on
the
Closing Date to a U.S. account designated in writing by the Company at least
two
business days prior to the Closing Date.
(c) Subject
to the terms and provisions of this Purchase Agreement, Purchaser shall be
obligated to purchase the Preferred Securities in the amounts set forth in
Section 2(a) hereof.
(d) Delivery
of the Preferred Securities shall be made at such location, and in such names
and denominations, as the Purchaser shall designate at least two business days
in advance of the Closing Date. The Company and the Trust agree to have the
Preferred Securities available for inspection and checking by the Purchaser
in
New York, New York, not later than 11:00 A.M. New York time, on the business
day
prior to the Closing Date. The closing for the purchase and sale of the
Preferred Securities shall occur at the offices of Xxxx Xxxxx LLP, Pittsburgh,
Pennsylvania, or such other place as the parties hereto shall
agree.
(e) Each
Preferred Security Certificate shall bear a legend in substantially the
following form:
“[IF
THIS SECURITY IS A GLOBAL SECURITY INSERT:
THIS
PREFERRED SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE TRUST
AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE
DEPOSITORY TRUST COMPANY (“DTC”) OR A NOMINEE OF DTC. THIS PREFERRED SECURITY IS
EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN DTC
OR
ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE TRUST AGREEMENT,
AND NO TRANSFER OF THIS PREFERRED SECURITY (OTHER THAN A TRANSFER OF THIS
PREFERRED SECURITY AS A WHOLE BY DTC TO A NOMINEE OF DTC OR BY A NOMINEE OF
DTC
TO DTC OR ANOTHER NOMINEE OF DTC) MAY BE REGISTERED EXCEPT IN LIMITED
CIRCUMSTANCES.
UNLESS
THIS PREFERRED SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC
TO
READING INTERNATIONAL TRUST I OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY PREFERRED SECURITY ISSUED IS REGISTERED IN THE
NAME
OF CEDE & CO. OR IN SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC),
ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.]
THE
PREFERRED SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ORIGINALLY ISSUED
IN A
TRANSACTION EXEMPT FROM REGISTRATION
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UNDER
THE
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND SUCH PREFERRED
SECURITIES OR ANY INTEREST THEREIN, MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION
THEREFROM. EACH PURCHASER OF ANY PREFERRED SECURITIES IS HEREBY NOTIFIED THAT
THE SELLER OF THE PREFERRED SECURITIES MAY BE RELYING ON THE EXEMPTION FROM
THE
PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A UNDER THE
SECURITIES ACT.
THE
HOLDER OF THE PREFERRED SECURITIES REPRESENTED BY THIS CERTIFICATE AGREES FOR
THE BENEFIT OF THE TRUST AND THE DEPOSITOR THAT (A) SUCH PREFERRED SECURITIES
MAY BE OFFERED, RESOLD OR OTHERWISE TRANSFERRED ONLY (I) TO THE DEPOSITOR OR
THE
TRUST OR (II) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS (a) A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT) AND (b) A “QUALIFIED PURCHASER” (AS DEFINED IN SECTION 2(a)(51) OF THE
INVESTMENT COMPANY ACT OF 1940, AS AMENDED), OR (III) TO A PERSON WHOM THE
SELLER REASONABLY BELIEVES IS A “QUALIFIED PURCHASER” (AS DEFINED IN SECTION
2(a)(51) OF THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED), AND (B) THE HOLDER
WILL NOTIFY ANY PURCHASER OF ANY PREFERRED SECURITIES FROM IT OF THE RESALE
RESTRICTIONS REFERRED TO IN (A) ABOVE.
THE
PREFERRED SECURITIES WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN BLOCKS HAVING
AN AGGREGATE LIQUIDATION AMOUNT OF NOT LESS THAN $100,000. TO THE FULLEST EXTENT
PERMITTED BY LAW, ANY ATTEMPTED TRANSFER OF PREFERRED SECURITIES, OR ANY
INTEREST THEREIN, IN A BLOCK HAVING AN AGGREGATE LIQUIDATION AMOUNT OF LESS
THAN
$100,000 AND MULTIPLES OF $1,000 IN EXCESS THEREOF SHALL BE DEEMED TO BE VOID
AND OF NO LEGAL EFFECT WHATSOEVER. TO THE FULLEST EXTENT PERMITTED BY LAW,
ANY
SUCH PURPORTED TRANSFEREE SHALL BE DEEMED NOT TO BE THE HOLDER OF SUCH PREFERRED
SECURITIES FOR ANY PURPOSE, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF
PRINCIPAL OF OR INTEREST ON SUCH PREFERRED SECURITIES, OR ANY INTEREST THEREIN,
AND SUCH PURPORTED TRANSFEREE SHALL BE DEEMED TO HAVE NO INTEREST WHATSOEVER
IN
SUCH PREFERRED SECURITIES.
THE
HOLDER OF THIS SECURITY, OR ANY INTEREST THEREIN, BY ITS ACCEPTANCE HEREOF
OR
THEREOF ALSO AGREES, REPRESENTS AND WARRANTS THAT IT IS NOT AN EMPLOYEE BENEFIT,
INDIVIDUAL RETIREMENT ACCOUNT OR OTHER PLAN OR ARRANGEMENT SUBJECT TO TITLE
I OF
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”),
OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”)
(EACH A
“PLAN”),
OR AN
ENTITY WHOSE UNDERLYING ASSETS INCLUDE “PLAN ASSETS” BY REASON OF ANY PLAN’S
INVESTMENT IN THE ENTITY, AND NO PERSON INVESTING “PLAN ASSETS” OF ANY PLAN MAY
ACQUIRE OR HOLD THIS PREFERRED SECURITY OR ANY INTEREST THEREIN. ANY PURCHASER
OR HOLDER OF THE PREFERRED SECURITIES OR ANY INTEREST THEREIN WILL BE DEEMED
TO
HAVE REPRESENTED BY ITS PURCHASE AND HOLDING THEREOF THAT IT IS NOT AN EMPLOYEE
BENEFIT PLAN WITHIN THE
-3-
MEANING
OF SECTION 3(3) OF ERISA, OR A PLAN TO WHICH SECTION 4975 OF THE CODE IS
APPLICABLE, A TRUSTEE OR OTHER PERSON ACTING ON BEHALF OF AN EMPLOYEE BENEFIT
PLAN OR PLAN, OR ANY OTHER PERSON OR ENTITY USING THE ASSETS OF ANY EMPLOYEE
BENEFIT PLAN OR PLAN TO FINANCE SUCH PURCHASE.”
3. Conditions.
The
obligations of the parties under this Purchase Agreement are subject to the
following conditions:
(a) The
representations and warranties contained herein shall be accurate as of the
date
of delivery of the Preferred Securities.
(b) Xxxx
& Xxxxx Professional Corporation, counsel for the Sellers (the “Company
Counsel”),
shall
have delivered (i) an opinion, dated the Closing Date, addressed to the
Purchaser and the Indenture Trustee, substantially in the form of Annex
A-1
hereto
with such changes as are acceptable to Purchaser in its sole discretion; and
(ii) the Company shall have furnished to the Purchaser the opinion of the
Company’s General Counsel or a certificate signed by the Chief Executive Officer
and Chief Financial Officer substantially in the form of Annex
A-2
hereto
with such changes as are acceptable to the Purchaser in its sole discretion.
In
rendering their opinion, the Company Counsel may rely as to factual matters
upon
certificates or other documents furnished by officers, directors and trustees
of
the Company, Reading NZ, the Trust and by government officials (provided,
however, that copies of any such certificates or documents are delivered to
the
Purchaser) and by and upon such other documents as such counsel may, in their
reasonable opinion, deem appropriate as a basis for the Company Counsel’s
opinion. The Company Counsel may specify the jurisdictions in which they are
admitted to practice and that they are not admitted to practice in any other
jurisdiction and are not experts in the law of any other jurisdiction. Such
Company Counsel Opinion shall not state that they are to be governed or
qualified by, or that they are otherwise subject to, any treatise, written
policy or other document relating to legal opinions, including, without
limitation, the Legal Opinion Accord of the ABA Section of Business Law
(1991).
(c) The
Purchaser, the Company and the Trust shall have been furnished the opinion
of
Xxxx Xxxxx LLP, special tax counsel for the Purchaser, dated the Closing Date,
addressed to the Purchaser and the Indenture Trustee, in substantially the
form
set out in Annex
B
hereto.
(d) The
Purchaser shall have received the opinion of Potter Xxxxxxxx & Xxxxxxx LLP,
special Delaware counsel for the Delaware Trustee, dated the Closing Date,
addressed to the Purchaser, the Indenture Trustee, the Delaware Trustee and
the
Company, in substantially the form set out in Annex
C
hereto.
(e) The
Purchaser shall have received the opinion of Potter Xxxxxxxx & Xxxxxxx LLP,
special counsel for the Property Trustee and the Indenture Trustee, dated the
Closing Date, addressed to the Purchaser, in substantially the form set out
in
Annex
D
hereto.
(f) The
Purchaser shall have received the opinion of Potter Xxxxxxxx & Xxxxxxx LLP,
special Delaware counsel for the Delaware Trustee, dated the Closing Date,
addressed to the Purchaser and the Indenture Trustee, in substantially the
form
set out in Annex
E
hereto.
(g) The
Company shall have furnished to the Purchaser a certificate of the Company,
signed by the Chief Executive Officer, President or a Vice President, and by
the
Chief Financial
Officer, Treasurer or an Assistant Treasurer of the Company, and the Trust
shall
have furnished to the Purchaser a certificate of the Trust, signed by an
Administrative Trustee of the
-4-
Trust,
in
each case dated the Closing Date, and, in the case of the Company, as to (i)
and
(ii) below and, in the case of the Trust, as to (i) below.
(i) the
representations and warranties of the Company, Reading NZ and the Trust, as
the
case may be, in this Purchase Agreement are true and correct on and as of the
Closing Date with the same effect as if made on the Closing Date, and the
Company and the Trust, as applicable, have complied with all the agreements
and
satisfied all the conditions on its part to be performed or satisfied at or
prior to the Closing Date; and
(ii) since
September 30, 2006 (the date of the last Interim Financial Statements (as
defined below), there has been no material adverse change in the condition
(financial or other), earnings, business or assets of the Company and its
subsidiaries taken as a whole, whether or not arising from transactions
occurring in the ordinary course of business (a “Material
Adverse Change”).
(h) Subsequent
to the execution of this Purchase Agreement, there shall not have been any
change, or any development involving a prospective change, in or affecting
the
condition (financial or other), earnings, business or assets of the Company
and
its subsidiaries, taken as a whole whether or not occurring in the ordinary
course of business, the effect of which is, in the Purchaser’s judgment, so
material and adverse as to make it impractical or inadvisable to proceed with
the purchase of the Preferred Securities.
(i) Prior
to
the Closing Date, the Company and the Indenture Trustee shall have duly executed
and delivered the Indenture in substantially the form attached as Annex
F
hereto
with such changes as are acceptable to Purchaser in its sole
discretion.
(j) Prior
to
the Closing Date, the Company, the Property Trustee, the Delaware Trustee and
the Administrative Trustees shall have duly executed and delivered the Trust
Agreement in substantially the form attached as Annex
G
hereto
with such changes as are acceptable to Purchaser in its sole
discretion.
(k) At
least
2 (two) Business Days prior to the proposed Closing Date, the Company shall
have
provided written notice to the Purchaser of the proposed Closing
Date.
(l) Prior
to
the Closing Date, the Company and the Trust shall have furnished to the
Purchaser and its counsel such further information, certificates and documents
as the Purchaser or such counsel may reasonably request.
(m) The
Purchaser shall have received rating agency analysis and approval of the
Securities, which shall be satisfactory to it in its sole
discretion.
(n) The
Purchaser shall have received evidence satisfactory to it that the Company’s
consolidated “Net Asset Value of Real Estate” (as defined in the Indenture) is
greater than or equal to $240,000,000.
If
any of
the conditions specified in this Section
3
shall
not have been fulfilled when and as provided in this Purchase Agreement, or
if
any of the opinions, certificates and documents mentioned above or elsewhere
in
this Purchase Agreement shall not be reasonably satisfactory in form and
substance to the Purchaser or their counsel, this Purchase Agreement and all
the
Purchaser’s obligations hereunder may be canceled at the Closing Date by the
Purchaser. Notice of such cancellation shall be given to the Company and the
Trust in writing or by telephone or facsimile confirmed in writing.
-5-
Each
certificate signed by any trustee of the Trust or any officer of the Company
and
delivered to the Purchaser or the Purchaser’s counsel in connection with the
Operative Documents and the transactions contemplated hereby and thereby shall
be deemed to be a representation and warranty of the Trust and/or the Company,
as the case may be, and not by such trustee or officer in any individual
capacity.
4. Representations
and Warranties of the Company, Reading NZ and the Trust.
The Company, Reading NZ and the Trust jointly and severally represent and
warrant to, and agree with the Purchaser, as follows (provided
that
none of the following representations or warranties apply or relate to any
acts
or omissions by the Purchaser or its Affiliates):
(a) None
of
the Company, Reading NZ or the Trust, nor any of their “Affiliates” (as defined
in Rule 501(b) of Regulation D (“Regulation
D”)
under
the Securities Act (as defined below)), nor any person acting on its or their
behalf, has, directly or indirectly, made offers or sales of any security,
or
solicited offers to buy any security, under circumstances that would require
the
registration of any of the Securities under the Securities Act of 1933, as
amended (the “Securities
Act”).
(b) None
of
the Company, Reading NZ or the Trust, nor any of their Affiliates, nor any
person acting on its or their behalf, has engaged in any form of “general
solicitation or general advertising” (within the meaning of Regulation D) in
connection with any offer or sale of any of the Securities.
(c) The
Securities (i) are not and have not been listed on a national securities
exchange registered under section 6 of the Securities Exchange Act of 1934,
as
amended (the “Exchange
Act”),
or
quoted on a U.S. automated inter-dealer quotation system and (ii) are not of
an
open-end investment company, unit investment trust or face-amount certificate
company that are, or are required to be, registered under section 8 of the
Investment Company Act of 1940, as amended (the “Investment
Company Act”),
and
the Securities otherwise satisfy the eligibility requirements of Rule 144A(d)(3)
promulgated pursuant to the Securities Act (“Rule
144A(d)(3)”).
(d) None
of
the Company, Reading NZ or the Trust, nor any of their Affiliates, nor any
person acting on its or their behalf, has engaged, or will engage, in any
“directed selling efforts” within the meaning of Regulation S under the
Securities Act with respect to the Securities.
(e) None
of
the Company, Reading NZ or the Trust is, and, immediately following consummation
of the transactions contemplated hereby and the application of the net proceeds
therefrom, will not be, an “investment company” or an entity “controlled” by an
“investment company,” in each case within the meaning of section 3(a) of the
Investment Company Act.
(f) None
of
the Company, Reading NZ or the Trust has paid or agreed to pay to any person
any
compensation for soliciting another to purchase any of the Securities, except
for the fee that the Company has agreed to pay to TBC Securities, LLC, pursuant
to that certain letter agreement dated November 3, 2006, between the Company
and
TBC Securities, LLC.
(g) The
Trust
has been duly created and is validly existing in good standing as a statutory
trust under the Delaware Statutory Trust Act, 12 Del. C. §3801, et
seq.
(the
“Statutory
Trust Act”)
with
all requisite power and authority to own property and to conduct the business
it transacts
and proposes to transact and to enter into and perform its obligations under
the
Operative Documents to which it is a party. The Trust is duly qualified to
transact business as a foreign entity and is in good standing in each
jurisdiction in which such qualification is
-6-
necessary,
except where the failure to so qualify or be in good standing would not have
a
material adverse effect on the condition (financial or otherwise), earnings,
business or assets of the Trust, whether or not occurring in the ordinary course
of business. The Trust is not a party to or otherwise bound by any agreement
other than the Operative Documents and other agreements contemplated by the
Operative Documents. The Trust is and will be, under current law, classified
for
federal income tax purposes as a grantor trust and not as an association or
publicly traded partnership taxable as a corporation.
(h) The
Trust
Agreement has been duly authorized by the Company and, on the Closing Date
specified in Section
2(b),
will
have been duly executed and delivered by the Company and the Administrative
Trustees of the Trust, and, assuming due authorization, execution and delivery
by the Property Trustee and the Delaware Trustee, will be a legal, valid and
binding obligation of the Company and the Administrative Trustees, enforceable
against them in accordance with its terms, subject to applicable bankruptcy,
insolvency and similar laws affecting creditors’ rights generally and to general
principles of equity. Each of the Administrative Trustees of the Trust is an
employee of the Company and has been duly authorized by the Company to execute
and deliver the Trust Agreement.
(i) The
Indenture has been duly authorized by the Company and Reading NZ and, on the
Closing Date, will have been duly executed and delivered by the Company, and,
assuming due authorization, execution and delivery by the Indenture Trustee,
will be a legal, valid and binding obligation of the Company and Reading NZ
enforceable against each thereof in accordance with its terms, subject to
applicable bankruptcy, insolvency and similar laws affecting creditors’ rights
generally and to general principles of equity.
(j) The
Preferred Securities and the Common Securities have been duly authorized by
the
Trust and, when issued and delivered against payment therefor on the Closing
Date in accordance with this Purchase Agreement, in the case of the Preferred
Securities, and in accordance with the Common Securities Subscription Agreement,
in the case of the Common Securities, will be validly issued, fully paid and
non-assessable and will represent undivided beneficial interests in the assets
of the Trust entitled to the benefits of the Trust Agreement, enforceable
against the Trust in accordance with their terms, subject to applicable
bankruptcy, insolvency and similar laws affecting creditors’ rights generally
and to general principles of equity. The issuance of the Securities is not
subject to any preemptive or other similar rights. On the Closing Date, all
of
the issued and outstanding Common Securities will be directly owned by the
Company free and clear of any pledge, security interest, claim, lien or other
encumbrance of any kind (each, a “Lien”).
(k) The
Junior Subordinated Notes have been duly authorized by the Company and Reading
NZ and, on the Closing Date, will have been duly executed and delivered to
the
Indenture Trustee for authentication in accordance with the Indenture and,
when
authenticated in the manner provided for in the Indenture and delivered to
the
Trust against payment therefor in accordance with the Junior Subordinated Note
Purchase Agreement, will constitute legal, valid and binding obligations of
the
Company and Reading NZ entitled to the benefits of the Indenture, enforceable
against each thereof in accordance with their terms, subject to applicable
bankruptcy, insolvency and similar laws affecting creditors’ rights generally
and to general principles of equity.
(l) This
Purchase Agreement has been duly authorized, executed and delivered by the
Company, Reading NZ and the Trust.
(m) Neither
the issue and sale of the Common Securities, the Preferred Securities or the
Junior Subordinated Notes, nor the purchase of the Junior Subordinated Notes
by
the Trust, nor the execution and delivery of and compliance with the Operative
Documents by
-7-
the
Company, Reading NZ or the Trust, nor the consummation of the transactions
contemplated herein or therein, (i) will conflict with or constitute a violation
or breach of the Trust Agreement or the certificate of formation, limited
liability company agreement, articles of incorporation, bylaws or other
organizational document of the Company, Reading NZ or any subsidiary of the
Company or Reading NZ or, to the Company’s or Reading NZ’s knowledge, any
applicable law, statute, rule, regulation, judgment, order, writ or decree
of
any government, governmental authority, agency or instrumentality or court,
domestic or foreign, having jurisdiction over the Trust or the Company, Reading
NZ or any of their subsidiaries or their respective properties or assets
(collectively, the “Governmental
Entities”),
(ii)
will conflict with or constitute a violation or breach of, or a default or
Repayment Event (as defined below) under, or result in the creation or
imposition of any Lien upon any property or assets of the Trust, the Company,
Reading NZ or any of their subsidiaries pursuant to, any contract, indenture,
mortgage, loan agreement, note, lease or other agreement or instrument to which
(A) the Trust, the Company, Reading NZ or any of their subsidiaries is a party
or by which it or any of them may be bound, or (B) to which any of the property
or assets of any of them is subject, or any judgment, order or decree of any
court, Governmental Entity or arbitrator, except, in the case of this clause
(ii), for such conflicts, breaches, violations, defaults, Repayment Events
(as
defined below) or Liens which (X) would not, singly or in the aggregate,
adversely affect the consummation of the transactions contemplated by the
Operative Documents and (Y) would not, singly or in the aggregate, have a
material adverse effect on the condition (financial or otherwise), earnings,
business, liabilities and assets (taken as a whole) or business prospects of
the
Company and its subsidiaries taken as a whole, whether or not occurring in
the
ordinary course of business (a “Material
Adverse Effect”)
or
(iii) require the consent, approval, authorization or order of any court or
Governmental Entity. As used herein, a “Repayment
Event”
means
any event or condition which gives the holder of any note, debenture or other
evidence of indebtedness (or any person acting on such holder’s behalf) the
right to require the repurchase, redemption or repayment of all or a portion
of
such indebtedness by the Trust, the Company, Reading NZ or any of their
subsidiaries prior to its scheduled maturity.
(n) The
Company has been duly incorporated and is validly existing as a corporation
in
good standing under the laws of Nevada, with all requisite corporate power
and
authority to own, lease and operate its properties and conduct the business
it
transacts and proposes to transact, and is duly qualified to transact business
and is in good standing as a foreign corporation in each jurisdiction where
the
nature of its activities requires such qualification, except where the failure
of the Company to be so qualified would not, singly or in the aggregate, have
a
Material Adverse Effect.
(o) The
Company has no subsidiaries that are material to its business, financial
condition or earnings other than those subsidiaries listed in Schedule
1
attached
hereto (collectively, the “Significant
Subsidiaries”).
Each
Significant Subsidiary (including Reading NZ) has been duly incorporated and
is
validly existing as a corporation in good standing under the laws of the
jurisdiction in which it is chartered or organized, with all requisite corporate
power and authority to own, lease and operate its properties and conduct the
business it transacts and proposes to transact. Each Significant Subsidiary
(including Reading NZ) is duly qualified to transact business and is in good
standing as a foreign corporation in each jurisdiction where the nature of
its
activities requires such qualification, except where the failure to be so
qualified would not, singly or in the aggregate, have a Material Adverse
Effect.
(p) Each
of
the Trust, the Company, Reading NZ and each of their subsidiaries hold all
necessary approvals, authorizations, orders, licenses, consents, registrations,
qualifications, certificates and permits (collectively, the “Governmental
Licenses”)
of and
from Governmental
Entities necessary to conduct their respective businesses as now being
conducted, and neither the Trust, the Company, Reading NZ nor any of their
subsidiaries has received any notice of proceedings relating to the revocation
or modification of any such Government
-8-
License,
except where the failure to be so licensed or approved or the receipt of an
unfavorable decision, ruling or finding, would not, singly or in the aggregate,
have a Material Adverse Effect; all of the Governmental Licenses are valid
and
in full force and effect, except where the invalidity or the failure of such
Governmental Licenses to be in full force and effect, would not, singly or
in
the aggregate, have a Material Adverse Effect; and the Trust, the Company,
Reading NZ and their subsidiaries are in compliance with all applicable laws,
rules, regulations, judgments, orders, decrees and consents, except where the
failure to be in compliance would not, singly or in the aggregate, have a
Material Adverse Effect.
(q) All
of
the issued and outstanding shares of capital stock of the Company and each
of
its subsidiaries (including Reading NZ) are validly issued, fully paid and
non-assessable; except as disclosed in the 1934 Act Reports (as defined below),
all of the issued and outstanding capital stock of each subsidiary (including
Reading NZ) of the Company is owned by the Company, directly or through
subsidiaries, free and clear of any Lien, claim or equitable right; and none
of
the issued and outstanding capital stock of the Company or any subsidiary
(including Reading NZ) was issued in violation of any preemptive or similar
rights arising by operation of law, under the charter or by-laws of such entity
or under any agreement to which the Company or any of its subsidiaries
(including Reading NZ) is a party.
(r) Neither
the Company nor any of its subsidiaries (including Reading NZ) is (i) in
violation of its respective charter or by-laws or similar organizational
documents or (ii) in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any contract, indenture, mortgage,
loan agreement, note, lease or other agreement or instrument to which the
Company or any such subsidiary is a party or by which it or any of them may
be
bound or to which any of the property or assets of any of them is subject,
except, in the case of clause (ii), where such violation or default would not,
singly or in the aggregate, have a Material Adverse Effect.
(s) There
is
no action, suit or proceeding before or by any Governmental Entity, arbitrator
or court, domestic or foreign, now pending or, to the knowledge of the Company,
Reading NZ or the Trust after due inquiry, threatened against or affecting
the
Trust, Reading NZ or the Company or any of their subsidiaries, except for such
actions, suits or proceedings that, if adversely determined, would not, singly
or in the aggregate, adversely affect the consummation of the transactions
contemplated by the Operative Documents or, except as disclosed in the 1934
Act
Reports, have a Material Adverse Effect; and the aggregate of all pending legal
or governmental proceedings to which the Trust, the Company, Reading NZ or
any
of their subsidiaries is a party or of which any of their respective properties
or assets is subject, including ordinary routine litigation incidental to the
business, are not expected to result in a Material Adverse Effect.
(t) The
accountants of the Company who certified the Financial Statements (as defined
below) are independent public accountants of the Company and its subsidiaries
within the meaning of the Securities Act, and the rules and regulations of
the
Securities and Exchange Commission (the “Commission”)
thereunder.
(u) The
audited consolidated financial statements (including the notes thereto) and
schedules of the Company and its consolidated subsidiaries (including Reading
NZ) for the three fiscal years ended December 31, 2005 (the “Financial
Statements”)
and
the interim unaudited consolidated financial statements of the Company and
its
consolidated subsidiaries (including Reading NZ) for the three months ended
September 30, 2006 (the “Interim
Financial Statements”)
provided to the Purchaser are the most recent available audited and
unaudited consolidated
financial statements of the Company and its consolidated subsidiaries (including
Reading NZ), respectively, and fairly present in all material respects, in
accordance with U.S. generally accepted accounting principles, the financial
position of the Company and its
-9-
consolidated
subsidiaries (including Reading NZ), and the results of operations and changes
in financial condition as of the dates and for the periods therein specified,
subject, in the case of Interim Financial Statements, to year-end adjustments
(which are expected to consist solely of normal recurring adjustments). Such
consolidated financial statements and schedules have been prepared in accordance
with U.S. generally accepted accounting principles (“GAAP”)
consistently applied throughout the periods involved (except as otherwise noted
therein).
(v) Except
as
disclosed in the 1934 Act Reports, none of the Trust, the Company, Reading
NZ
nor any of their subsidiaries has any material liability, whether asserted
or
unasserted, whether absolute or contingent, whether accrued or unaccrued,
whether liquidated or unliquidated, and whether due or to become due, including
any liability for taxes (and there is no past or present fact, situation,
circumstance, condition or other basis for any present or future action, suit,
proceeding, hearing, charge, complaint, claim or demand against the Company
or
its subsidiaries that could give rise to any such liability), except for (i)
liabilities set forth in the Financial Statements or the Interim Financial
Statements and (ii) normal fluctuations in the amount of the liabilities
referred to in clause (i) above occurring in the ordinary course of business
of
the Trust, the Company and all of its subsidiaries since the date of the most
recent balance sheet included in such Financial Statements.
(w) Since
the
respective dates of the Financial Statements and the Interim Financial
Statements, there has not been (A) any Material Adverse Change or (B) any
dividend or distribution of any kind declared, paid or made by the Company
on
any class of its capital stock other than regular quarterly dividends on the
Company’s common stock.
(x) The
documents of the Company filed with the Commission in accordance with the
Exchange Act, from and including the commencement of the fiscal year covered
by
the Company’s most recent Annual Report on Form 10-K, at the time they were or
hereafter are filed by the Company with the Commission (collectively, the
“1934
Act Reports”),
complied and will comply in all material respects with the requirements of
the
Exchange Act and the rules and regulations of the Commission thereunder (the
“1934
Act Regulations”),
and,
at the date of this Purchase Agreement and on the Closing Date, do not and
will
not include an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading;
and other than such instruments, agreements, contracts and other documents
as
are filed as exhibits to the Company’s Annual Report on Form 10-K, Quarterly
Reports on Form 10-Q or Current Reports on Form 8-K, there are no instruments,
agreements, contracts or documents of a character described in Item 601 of
Regulation S-K promulgated by the Commission to which the Company or any of
its
subsidiaries is a party other than those which are not yet required to be filed.
The Company is in compliance with all currently applicable requirements of
the
Exchange Act that were added by the Xxxxxxxx-Xxxxx Act of 2002.
(y) No
labor
dispute with the employees of the Company or any of its subsidiaries exists
or,
to the knowledge of the executive officers of the Company, is imminent, except
those which would not, singly or in the aggregate, have a Material Adverse
Effect.
(z) No
filing
with, or authorization, approval, consent, license, order, registration,
qualification or decree of, any Governmental Entity, other than those that
have
been made or obtained, is necessary or required for the performance by the
Trust, Reading NZ or the Company of their respective obligations under the
Operative Documents, as applicable, or the consummation by the Trust, Reading
NZ
and the Company of the transactions contemplated by the Operative
Documents.
(aa) Each
of
the Trust, the Company and each Significant Subsidiary (including Reading NZ)
has good and marketable title to all of its respective material real and
-10-
personal
properties, in each case free and clear of all Liens and defects, except for
those that would not, singly or in the aggregate, have a Material Adverse
Effect; and all of the leases and subleases under which the Trust, the Company,
or any Significant Subsidiary of the Company holds properties are in full force
and effect, except where the failure of such leases and subleases to be in
full
force and effect would not, singly or in the aggregate, have a Material Adverse
Effect, and none of the Trust, the Company or any Significant Subsidiary of
the
Company has any notice of any claim of any sort that has been asserted by anyone
adverse to the rights of the Trust, the Company or any significant subsidiary
of
the Company under any such leases or subleases, or affecting or questioning
the
rights of such entity to the continued possession of the leased or subleased
premises under any such lease or sublease, except for such claims that would
not, singly or in the aggregate, have a Material Adverse Effect.
(bb) [Intentionally
omitted.]
(cc) The
Company and each of the Significant Subsidiaries have timely and duly filed
all
Tax Returns required to be filed by them or has requested an extension thereof,
and all such Tax Returns are true, correct and complete in all material
respects. The Company and each of the Significant Subsidiaries have timely
and
duly paid in full all material Taxes required to be paid by them, except for
any
such Taxes that are currently being contested in good faith or would not have
a
Material Adverse Effect (whether or not such amounts are shown as due on any
Tax
Return). Except as disclosed in the 1934 Act Reports, there are no federal,
state, or other Tax audits or deficiency assessments proposed or pending with
respect to the Company or any of the Significant Subsidiaries, and no such
audits or assessments are threatened. As used herein, the terms “Tax”
or
“Taxes”
mean
(i) all federal, state, local, and foreign taxes, and other assessments of
a
similar nature (whether imposed directly or through withholding), including
any
interest, additions to tax, or penalties applicable thereto, imposed by any
Governmental Entity, and (ii) all liabilities in respect of such amounts arising
as a result of being a member of any affiliated, consolidated, combined, unitary
or similar group, as a successor to another person or by contract. As used
herein, the term “Tax
Returns”
means
all federal, state, local, and foreign Tax returns, declarations, statements,
reports, schedules, forms, and information returns and any amendments thereto
filed or required to be filed with any Governmental Entity.
(dd) The
Trust
is not subject to United States federal income tax with respect to income
received or accrued on the Junior Subordinated Notes, interest payable by the
Company and Reading NZ on the Junior Subordinated Notes is deductible by the
Company and Reading NZ, respectively, in whole or in part, for United States
federal income tax purposes, and the Trust is not subject to more than a
de
minimis
amount
of other taxes, duties or other governmental charges.
(ee) The
books, records and accounts of the Company and its subsidiaries accurately
and
fairly reflect, in reasonable detail, the transactions in, and dispositions
of,
the assets of, and the results of operations of, the Company and its
subsidiaries. Each of the Company and each of its subsidiaries maintains a
system of internal accounting controls sufficient to provide reasonable
assurances that (i) transactions are executed in accordance with management’s
general or specific authorizations, (ii) transactions are recorded as necessary
to permit preparation of financial statements in accordance with GAAP and to
maintain asset accountability, (iii) access to assets is permitted only in
accordance with management’s general or specific authorization and (iv) the
recorded accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(ff) The
Company and the Significant Subsidiaries (including Reading NZ) are insured
by
insurers of recognized financial responsibility against such losses and risks
and in such amounts in all material respects as are customary in the businesses
in which they are
-11-
engaged
or propose to engage after giving effect to the transactions contemplated
hereby. All policies of insurance and fidelity or surety bonds insuring the
Company or any of the Significant Subsidiaries or the Company’s or Significant
Subsidiaries’ respective businesses, assets, employees, officers and directors
are in full force and effect.
(gg) The
Company and its subsidiaries or, to the knowledge of the senior executive
officers of the Company, any person acting on behalf of the Company and its
subsidiaries including, without limitation, any director, officer, agent or
employee of the Company or its subsidiaries has not, directly or indirectly,
while acting on behalf of the Company and its subsidiaries (i) used any
corporate funds for unlawful contributions, gifts, entertainment or other
unlawful expenses relating to political activity; (ii) made any unlawful payment
to foreign or domestic government officials or employees or to foreign or
domestic political parties or campaigns from corporate funds; (iii) violated
any
provision of the Foreign Corrupt Practices Act of 1977, as amended; or (iv)
made
any other unlawful payment.
(hh) The
information provided by the Company, Reading NZ and the Trust pursuant to this
Purchase Agreement and the Operative Documents, insofar as they relate to the
Company, Reading NZ and the Trust, do not, as of the date hereof, and will
not
as of the Closing Date, contain any untrue statement of a material fact or
omit
to state any material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading.
(ii) Except
as
disclosed in the 1934 Act Reports, and except as would not, individually or
in
the aggregate, result in a Material Adverse Change, (i) the Company and its
subsidiaries have been and are in compliance with applicable Environmental
Laws
(as defined below), (ii) none of the Company or any of its subsidiaries or
otherwise disposed of Hazardous Materials (as defined below) on, to, in, under
or from the properties owned by it (“Properties”)
or any
other real properties previously owned, leased or operated by the Company or
any
of its subsidiaries, (iii) neither the Company nor any of its subsidiaries
intends to use the Properties or any subsequently acquired properties, other
than in compliance with applicable Environmental Laws, (iv) neither the Company
nor any of its subsidiaries has received to the knowledge of the senior
executives of the Company any notice of, or has any knowledge of any occurrence
or circumstance which, with notice or passage of time or both, would give rise
to a claim under or pursuant to any Environmental Law with respect to the
Properties, any other real properties previously owned, leased or operated
by
the Company or any of its subsidiaries, or their respective assets or arising
out of the conduct of the Company or its subsidiaries, and (v) no lien has
been
imposed on the Properties by any Governmental Entity in connection with the
presence on or off such Property of any Hazardous Material.
As
used
herein, “Hazardous
Material”
shall
include, without limitation, any flammable materials, explosives, radioactive
materials, hazardous materials, hazardous substances, hazardous wastes, toxic
substances or related materials, asbestos, petroleum, petroleum products and
any
hazardous material as defined by any federal, state or local environmental
law,
statute, ordinance, rule or regulation, including, without limitation, the
Comprehensive Environmental Response, Compensation, and Liability Act of 1980,
as amended, 42 U.S.C. §§ 9601-9675 (“CERCLA”),
the
Hazardous Materials Transportation Act, as amended, 49 U.S.C. §§ 5101-5127, the
Resource Conservation and Recovery Act, as amended, 42 U.S.C. §§ 6901-6992k, the
Emergency Planning and Community Right-to-Know Act of 1986, 42 U.S.C. §§
11001-11050, the Toxic Substances Control Act, 15 U.S.C. §§ 2601-2692, the
Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. §§ 136-136y, the
Clean Air Act, 42 U.S.C. §§ 7401-7642, the Clean Water Act (Federal Water
Pollution Control Act), 33 U.S.C. §§ 1251-1387, the Safe Drinking
Water Act, 42 U.S.C. §§ 300f-300j-26, and the Occupational Safety and Health
Act, 29 U.S.C. §§ 651-678, and any analogous state laws, as any of the above may
be amended from time to time and in the regulations promulgated pursuant to
each
of the foregoing (including
-12-
environmental
statutes and laws not specifically defined herein) (individually, an
“Environmental
Law”
and
collectively, the “Environmental
Laws”)
or by
any Governmental Entity.
5. Representations
and Warranties of the Purchaser.
Purchaser represents and warrants to, and agrees with, the Company and the
Trust
as follows:
(a) Purchaser
is aware that the Securities have not been and will not be registered under
the
Securities Act and may not be offered or sold within the United States or to
“U.S. persons” (as defined in Regulation S under the Securities Act) except in
accordance with Rule 903 of Regulation S under the Securities Act or pursuant
to
an exemption from the registration requirements of the Securities
Act.
(b) Purchaser
is an “accredited investor,” as such term is defined in Rule 501(a) of
Regulation D under the Securities Act.
(c) Neither
Purchaser, nor any of Purchaser’s affiliates, nor any person acting on
Purchaser’s or Purchaser’s Affiliate’s behalf has engaged, or will engage, in
any form of “general solicitation or general advertising” (within the meaning of
Regulation D) in connection with any offer or sale of the Preferred
Securities.
(d) Purchaser
understands and acknowledges that (i) no public market exists for any of the
Securities and that it is unlikely that a public market will ever exist for
the
Securities, (ii) Purchaser is purchasing the Securities for its own account,
for
investment and not with a view to, or for offer or sale in connection with,
any
distribution thereof in violation of the Securities Act or other applicable
securities laws, subject to any requirement of law that the disposition of
its
property be at all times within its control and subject to its ability to resell
such Securities pursuant to an effective registration statement under the
Securities Act or pursuant to an exemption therefrom or in a transaction not
subject thereto, and Purchaser agrees to the legends and transfer restrictions
applicable to the Securities, and (iii) Purchaser has had the opportunity to
ask
questions of, and receive answers and request additional information from,
the
Company and is aware that it may be required to bear the economic risk of an
investment in the Securities until the maturity thereof.
(e) Purchaser
is a company with limited liability duly incorporated, validly existing and
in
good standing under the laws of the jurisdiction of organization in which it
is
organized with all requisite (i) power and authority to execute, deliver and
perform the Operative Documents to which it is a party, to make the
representations and warranties specified herein and therein and to consummate
the transactions contemplated herein and (ii) right and power to purchase the
Securities.
(f) This
Purchase Agreement has been duly authorized, executed and delivered by Purchaser
and constitutes its legal, valid and binding obligation, enforceable in
accordance with its terms, subject to applicable bankruptcy, insolvency and
similar laws affecting creditors’ rights generally and to general principles of
equity. No filing with, or authorization, approval, consent, license, order
registration, qualification or decree of, any governmental body, agency or
court
having jurisdiction over Purchaser, other than those that have been made or
obtained, is necessary or required for the performance by Purchaser of its
obligations under this Purchase Agreement or to consummate the transactions
contemplated herein.
(g) Purchaser
is a “Qualified Purchaser” as such term is defined in Section 2(a)(51) of the
Investment Company Act.
-13-
6. Covenants
and Agreements of the Company, Reading NZ and the Trust.
The Company, Reading NZ and the Trust jointly and severally agree with the
Purchaser as follows (provided
that
none of the following covenants apply or relate to any acts of the Purchaser
or
their Affiliates):
(a) During
the period from the date of this Agreement to the Closing Date, the Company,
Reading NZ and the Trust shall use commercially reasonable efforts and take
all
action necessary or appropriate to cause their representations and warranties
contained in Section
4
hereof
to be true as of the Closing Date, after giving effect to the transactions
contemplated by this Purchase Agreement, as if made on and as of the Closing
Date.
(b) The
Company, Reading NZ and the Trust will arrange for the qualification of the
Preferred Securities for sale under the state blue sky laws of such
jurisdictions as the Purchaser may designate and will maintain such
qualifications in effect so long as required for the sale of the Preferred
Securities. The Company, Reading NZ or the Trust, as the case may be, will
promptly advise the Purchaser of the receipt by the Company, Reading NZ or
the
Trust, as the case may be, of any notification with respect to the suspension
of
the qualification of the Preferred Securities for sale in any such jurisdiction
or the initiation or threatening of any proceeding for such purpose.
(c) None
of
the Company, Reading NZ or the Trust will, nor will any of them permit any
of
its Affiliates to, nor will any of them permit any person acting on its or
their
behalf (other than the Purchaser) to, resell any Preferred Securities that
have
been acquired by any of them.
(d) None
of
the Company, Reading NZ or the Trust will, nor will any of them permit any
of
their Affiliates or any person acting on their behalf to, engage in any
“directed selling efforts” within the meaning of Regulation S under the
Securities Act with respect to the Securities.
(e) None
of
the Company, Reading NZ or the Trust will, nor will any of them permit any
of
their Affiliates or any person acting on their behalf to, directly or
indirectly, make offers or sales of any security, or solicit offers to buy
any
security, under circumstances that would require the registration of any of
the
Securities under the Securities Act.
(f) None
of
the Company, Reading NZ or the Trust will, nor will any of them permit any
of
its Affiliates or any person acting on their behalf to, engage in any form
of
“general solicitation or general advertising” (within the meaning of Regulation
D) in connection with any offer or sale of the any of the
Securities.
(g) So
long
as any of the Securities are outstanding, (i) the Securities shall not be listed
on a national securities exchange registered under section 6 of the Exchange
Act
or quoted in a U.S. automated inter-dealer quotation system and (ii) none the
Company, Reading NZ or the Trust shall be an open-end investment company, unit
investment trust or face-amount certificate company that is, or is required
to
be, registered under section 8 of the Investment Company Act, and, the
Securities shall otherwise satisfy the eligibility requirements of Rule
144A(d)(3).
(h) Each
of
the Company and the Trust shall furnish to (i) the holders, and subsequent
holders of the Preferred Securities, (ii) Purchaser at 0000 Xxxxxx Xxxx., Xxxxx
000, Xxxxxxxxx, XX 00000, Attention: Xxxxxx Xxxxxx, Chief Financial Officer,
or
such other address as
designated by Purchaser) and (iii) any beneficial owner of the Securities
reasonably identified to the Company and the Trust (which identification may
be
made by either such beneficial owner or by Purchaser), a duly completed and
executed certificate in the form attached hereto as Annex
-14-
F,
including the financial statements referenced in such Annex, which certificate
and financial statements shall be so furnished by the Company and the Trust
not
later than forty five (45) days after the end of each of the first three fiscal
quarters of each fiscal year of the Company and not later than ninety (90)
days
after the end of each fiscal year of the Company.
(i) Each
of
the Company and the Trust will, during any period in which it is not subject
to
and in compliance with section 13 or 15(d) of the Exchange Act, or it is not
exempt from such reporting requirements pursuant to and in compliance with
Rule
12g3-2(b) under the Exchange Act, provide to each holder of the Securities
and
to each prospective purchaser (as designated by such holder) of the Securities,
upon the request of such holder or prospective purchaser, any information
required to be provided by Rule 144A(d)(4) under the Securities Act. If the
Company and the Trust are required to register under the Exchange Act, such
reports filed in compliance with Section 13(a) shall be sufficient information
as required above. This covenant is intended to be for the benefit of the
Purchaser, the holders of the Securities, and the prospective purchasers
designated by the Purchaser and such holders, from time to time, of the
Securities.
(j) None
of
the Company, Reading NZ or the Trust will, until one hundred eighty (180) days
following the Closing Date, without the Purchaser’s prior written consent,
offer, sell, contract to sell, grant any option to purchase or otherwise dispose
of, directly or indirectly, (i) any Preferred Securities or other securities
substantially similar to the Preferred Securities other than as contemplated
by
this Purchase Agreement or (ii) any other securities convertible into, or
exercisable or exchangeable for, any Preferred Securities or other securities
substantially similar to the Preferred Securities; provided,
for the
avoidance of doubt, that no such consent shall be required (a) if such other
securities have a different maturity date, interest rate and other terms than
those of the Preferred Securities or (b) if, after giving effect to any such
offer, sale or option, the offer, sale or option of such other securities shall
not result in the required registration of the sale of the Preferred Securities
as contemplated herein.
(k) [Intentionally
omitted].
(l) None
of
the Company, Reading NZ or the Trust will identify any of the Indemnified
Parties (as defined below) in a press release or any other public statement
without the consent of such Indemnified Party, except as otherwise required
by
applicable laws.
(m) The
Purchaser shall have the right under this Purchase Agreement, the Indenture
and
the Trust Agreement to request the substitution of new notes for all or a
portion of the Junior Subordinated Notes held by the Trust. The Trust shall
be
required under the terms of this Purchase Agreement, the Indenture and the
Trust
Agreement to accept such newly issued notes (the “Replacement
Notes”)
from
the Company and Reading NZ and surrender a like amount of Junior Subordinated
Notes to the Company and Reading NZ. The Replacement Notes shall bear terms
identical to the Junior Subordinated Notes with the sole exception of interest
payment dates (and corresponding redemption date and maturity date), which
will
be specified by the Purchaser. In no event will the interest payment dates
(and
corresponding redemption date and maturity date) on the Replacement Notes vary
by more than sixty (60) calendar days from the original interest payment dates
(and corresponding redemption date and maturity date) under the Junior
Subordinated Notes. Each of the Company, Reading NZ and the Trust acknowledges
and agrees that, to the extent of the principal amount of the Replacement Notes
issued to the Trust under the Indenture, the Purchaser (and each successor
to
the Purchaser’s interest in the Preferred Securities) will require the Trust to
issue a new series of Preferred Securities
having a principal amount related to the principal amount of the Replacement
Notes (the “Replacement
Securities”)
to
designated holders of Preferred Securities, provided that any such Replacement
Securities, and any distributions from the Trust to the holders of Replacement
Securities, must relate solely to the Trust’s interest in the Replacement Notes
and in no event
-15-
will
the
Preferred Securities other than the Replacement Securities share in the returns
from any Replacement Notes. The Replacement Securities shall have payment dates
(and corresponding redemption date and maturity date) that relate to the
Replacement Notes. Each of the Company, Reading NZ and the Trust agrees to
cooperate with all reasonable requests of the Purchaser in connection with
any
of the foregoing; provided,
that no
action requested of the Company, Reading NZ or the Trust in connection with
such
cooperation shall materially increase the obligations or materially decrease
the
rights of the Company or Reading NZ pursuant to such documents. The Purchaser
shall pay all reasonable expenses in connection with the issuance of the
Replacement Notes and the Replacement Securities.
(n) The
Company grants to Purchaser a right of first offer on any additional Preferred
Securities, or securities similar to the Preferred Securities proposed to be
issued by the Company within 12 months following the Closing Date.
7. Payment
of Expenses.
The Company, as depositor of the Trust, agrees to pay all costs and
expenses incident to the performance of the obligations of the Company and
the
Trust under this Purchase Agreement, whether or not the transactions
contemplated herein are consummated or this Purchase Agreement is terminated,
including all costs and expenses incident to (i) the authorization, issuance,
sale and delivery of the Preferred Securities and any taxes payable in
connection therewith; (ii) the fees and expenses of qualifying the Preferred
Securities under the securities laws of the several jurisdictions as provided
in
Section
6(b);
(iii)
the fees and expenses of the counsel, the accountants and any other experts
or
advisors retained by the Company or the Trust; (iv) the fees and all reasonable
expenses of the Property Trustee, the Delaware Trustee, the Indenture Trustee
and any other trustee or paying agent appointed under the Operative Documents,
including the fees and disbursements of counsel for such trustees, which fees
shall not exceed $3,500 for the fees and expenses of Potter Xxxxxxxx &
Xxxxxxx LLP, special Delaware counsel retained by the Delaware Trustee in
connection with the Closing (v) the reasonable fees and expenses of Xxxx Xxxxx
LLP, special counsel retained by the Purchaser not to exceed $30,000; and (vi)
a
due diligence fee in an amount equal to $12,500 ($5,000 of which was paid upon
execution of the Letter of Intent) payable to the Purchaser or their
designee.
If
the
sale of the Preferred Securities provided for in this Purchase Agreement is
not
consummated because any condition set forth in Section
3
hereof
to be satisfied by any of the Company, Reading NZ or the Trust is not satisfied,
because this Purchase Agreement is terminated pursuant to Section
9
or
because of any failure, refusal or inability on the part of the Company, Reading
NZ or the Trust to perform all obligations and satisfy all conditions on its
part to be performed or satisfied hereunder other than by reason of a default
by
the Purchaser, the Company will reimburse the Purchaser upon demand for all
reasonable out-of-pocket expenses (including the reasonable fees and expenses
of
Purchaser’s counsel specified in subparagraphs (v) of the immediately preceding
paragraph) that shall have been incurred by the Purchaser in connection with
the
proposed purchase and sale of the Preferred Securities. The Company shall not
in
any event be liable to the Purchaser for the loss of anticipated profits or
other special, incidental or consequential damages from the transactions
contemplated by this Purchase Agreement.
8. Indemnification.
(a) Each
of
the Company, Reading NZ and the Trust agree jointly and severally to indemnify
and hold harmless the Purchaser and the Purchaser’s affiliates (collectively,
the “Indemnified
Parties”),
each
person, if any, who controls any of the Indemnified Parties within the meaning
of the Securities Act, or the Exchange Act, and the Indemnified Parties’
respective directors, officers, employees and agents and each person who
“controls” the Indemnified Parties within the meaning of either the Securities
Act or the
-16-
Exchange
Act against any and all losses, claims, damages or liabilities, joint or
several, to which they or any of them may become subject under the Securities
Act, the Exchange Act or other federal or state statutory law or regulation,
at
common law or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon (i) any untrue
statement or alleged untrue statement of a material fact contained in any
information or documents furnished or made available to the Purchaser by or
on
behalf of the Company, Reading NZ or the Trust, (ii) the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, (iii) the breach or
alleged breach of any representation, warranty or agreement of any of the
Sellers contained herein or (iv) the execution and delivery by the Company,
Reading NZ and/or the Trust of this Purchase Agreement or any of the other
Operative Documents and/or the consummation of the transactions contemplated
hereby and thereby; provided,
however,
that
none of the Company, Reading NZ or the Trust shall be liable to the extent
that
any such loss, claim, damage or liability arises out of or is based on any
statement, act or omission of the Indemnified Parties, and agrees to reimburse
the Indemnified Parties, as incurred, for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action. This indemnity agreement will be in addition
to any liability which the Company or the Trust may otherwise have.
(b) The
Company agrees to indemnify the Trust against all loss, liability, claim, damage
and expense whatsoever due from the Trust under paragraph (a)
above.
(c) Promptly
after receipt by an Indemnified Party under this Section
8
of
notice of the commencement of any action, such Indemnified Party will, if a
claim in respect thereof is to be made against the indemnifying party under
this
Section
8,
promptly notify the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party (i) will not relieve the
indemnifying party from liability under paragraph (a) above unless and to the
extent that such failure results in the forfeiture by the indemnifying party
of
material rights and defenses and (ii) will not, in any event, relieve the
indemnifying party from any obligations to any Indemnified Party other than
the
indemnification obligation provided in paragraph (a) above. The indemnifying
party shall be entitled to appoint counsel of the indemnifying party’s choice at
the indemnifying party’s expense to represent the Indemnified Party in any
action for which indemnification is sought (in which case the indemnifying
party
shall not thereafter be responsible for the fees and expenses of any separate
counsel retained by the Indemnified Party except as set forth below);
provided,
however,
that
such counsel shall be reasonably satisfactory to the Indemnified Party.
Notwithstanding the indemnifying party’s election to appoint counsel to
represent the Indemnified Party in an action, the Indemnified Party shall have
the right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses of such
separate counsel if (i) the use of counsel chosen by the indemnifying party
to
represent the Indemnified Party would present such counsel with a conflict
of
interest, (ii) the actual or potential defendants in, or targets of, any such
action include both the Indemnified Party and the indemnifying party and the
Indemnified Party shall have reasonably concluded that there may be legal
defenses available to it and/or other Indemnified Parties which are different
from or additional to those available to the indemnifying party, (iii) the
indemnifying party shall not have employed counsel reasonably satisfactory
to
the Indemnified Party to represent the Indemnified Party within a reasonable
time after notice of the institution of such action or (iv) the indemnifying
party shall authorize the Indemnified Party to employ separate counsel at the
expense of the indemnifying party (it being understood and agreed that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel (in addition to any local counsel) representing the Indemnified
Parties to such action). An
indemnifying party will not, without the prior written consent of the
Indemnified Parties, settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification may be sought hereunder (whether
or not the Indemnified Parties are actual or potential parties to such claim,
-17-
action,
suit or proceeding) unless such settlement, compromise or consent includes
an
unconditional release of each Indemnified Party from all liability arising
out
of such claim, action, suit or proceeding.
9. Termination:
Representations and Indemnities to Survive.
This Purchase Agreement shall be subject to termination in the absolute
discretion of the Purchaser, by notice given to the Company, Reading NZ and
the
Trust prior to delivery of and payment for the Preferred Securities, if prior
to
such time (i) a downgrading shall have occurred in the rating accorded the
Company’s debt securities or preferred stock by any “nationally recognized
statistical rating organization,” as that term is used by the Commission in Rule
15c3-1(c)(2)(vi)(F) under the Exchange Act, or such organization shall have
publicly announced that it has under surveillance or review, with possible
negative implications, its rating of the Company’s debt securities or preferred
stock, (ii) the Trust shall be unable to sell and deliver to the Purchaser
at
least $50,000,000 stated liquidation value of Preferred Securities, (iii) a
suspension or material limitation in trading in securities generally shall
have
occurred on the New York Stock Exchange, (iv) a suspension or material
limitation in trading in any of the Company’s securities shall have occurred on
the exchange or quotation system upon which the Company’s securities are traded,
if any, (v) a general moratorium on commercial business activities shall have
been declared either by federal or applicable state authorities or (vi) there
shall have occurred any outbreak or escalation of hostilities, or declaration
by
the United States of a national emergency or war or other calamity or crisis
the
effect of which on financial markets is such as to make it, in the Purchaser’s
judgment, impracticable or inadvisable to proceed with the offering or delivery
of the Preferred Securities. The respective agreements, representations,
warranties, indemnities and other statements of the Company, Reading NZ and
the
Trust or their respective officers or trustees and of the Purchaser set forth
in
or made pursuant to this Purchase Agreement will remain in full force and
effect, regardless of any investigation made by or on behalf of the Purchaser,
the Company, Reading NZ or the Trust or any of the their respective officers,
directors, trustees or controlling persons, and will survive delivery of and
payment for the Preferred Securities. The provisions of Sections
7
and
8
shall
survive the termination or cancellation of this Purchase Agreement.
10. Amendments.
This Purchase Agreement may not be modified, amended, altered or
supplemented, except upon the execution and delivery of a written agreement
by
each of the parties hereto.
11. Notices.
All communications hereunder will be in writing and effective only on
receipt, and, if sent to the Purchaser, will be mailed, delivered by hand or
courier or sent by facsimile and confirmed to the Purchaser at 0000 Xxxxxx
Xxxx., Xxxxx 000, Xxxxxxxxx, XX 00000, Attention: Xxxxxx Xxxxxx, Chief Financial
Officer, Facsimile: (000) 000-0000; with a copy to Xxxx Xxxxx LLP, 000 Xxxxx
Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000, Attention: Xxxxxx X. Xxxxxxx, Xx.,
Facsimile: (000) 000-0000 or other address as the Purchaser shall designate
for
such purpose in a notice to the Company, Reading NZ and the Trust; and if sent
to the Company, Reading NZ or the Trust, will be mailed, delivered by hand
or
courier or sent by facsimile and confirmed to it c/o Reading International,
Inc., 000 Xxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxxxxx 00000, Attention:
Xxxxxxx Xxxxxxxxxxx, Facsimile: (000) 000-0000.
12. Successors
and Assigns.
This Purchase Agreement will inure to the benefit of and be binding upon
the parties hereto and their respective successors and permitted assigns.
Nothing expressed or mentioned in this Purchase Agreement is intended or shall
be construed to give any person other than the parties hereto and the
affiliates, directors, officers, employees, agents and controlling persons
referred to in Section
8
hereof
and their successors, assigns, heirs and legal representatives, any right or
obligation hereunder. None of the rights or obligations of the Company, Reading
NZ or the Trust under this Purchase Agreement may be assigned, whether by
operation of law or otherwise, without the Purchaser’s prior written consent.
The
-18-
rights
and obligations of Purchaser under this Purchase Agreement may be assigned
by
Purchaser without the Company’s, Reading NZ’s or the Trust’s consent; provided
that the assignee assumes the obligations of Purchaser under this Purchase
Agreement.
13. Applicable
Law.
THIS PURCHASE AGREEMENT WILL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK WITHOUT REFERENCE TO PRINCIPLES
OF CONFLICTS OF LAW (OTHER THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS
LAW).
14. Submission
to Jurisdiction.
ANY LEGAL ACTION OR PROCEEDING BY OR AGAINST ANY PARTY HERETO OR WITH RESPECT
TO
OR ARISING OUT OF THIS PURCHASE AGREEMENT MAY BE BROUGHT IN OR REMOVED TO THE
COURTS OF THE STATE OF NEW YORK, IN AND FOR THE COUNTY OF NEW YORK, OR OF THE
UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK (IN EACH CASE
SITTING IN THE BOROUGH OF MANHATTAN). BY EXECUTION AND DELIVERY OF THIS PURCHASE
AGREEMENT, EACH PARTY ACCEPTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY,
GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS (AND
COURTS OF APPEALS THEREFROM) FOR LEGAL PROCEEDINGS ARISING OUT OF OR IN
CONNECTION WITH THIS PURCHASE AGREEMENT.
15. Counterparts
and Facsimile.
This Purchase Agreement may be executed by any one or more of the parties hereto
in any number of counterparts, each of which shall be deemed to be an original,
but all such counterparts shall together constitute one and the same instrument.
This Purchase Agreement may be executed by any one or more of the parties hereto
by facsimile.
[Signature
page follows]
-19-
IN
WITNESS WHEREOF, this Purchase Agreement has been entered into as of the date
first written above.
READING
INTERNATIONAL, INC.
By:
_______________
Name:
Title:
READING
NEW ZEALAND, LIMITED
By:
_______________
Name:
Title:
READING
INTERNATIONAL TRUST I
By:
READING INTERNATIONAL, INC., as Depositor
By:
_____________________
Name:
Title:
KODIAK
WAREHOUSE JPM LLC
By:
Kodiak Funding, LP
Its
sole
member
By:
Kodiak Funding Company, Inc.
Its
general partner
By:
____________________
Name:
Xxxxxx X. Xxxxxx
Title:
Chief Financial Officer
-20-
SCHEDULE
1
List
of Significant Subsidiaries
Reading
Pacific, LLC
Reading
International Cinemas, LLC
Reading
New Zealand, Limited
Reading
Entertainment Australia Pty Ltd
Newmarket
Properties Pty Ltd
Reading
Properties Pty Ltd
Reading
Cinemas Pty Ltd
Reading
Cinemas USA, LLC
Xxxxxx
Xxxx Properties, LLC
ANNEX
A-1
[FORM
OF COMPANY COUNSEL OPINION PURSUANT TO SECTION 3(b)]
ANNEX
A-2
FORM
OF
GENERAL COUNSEL OPINION OR OFFICERS’ CERTIFICATE
Pursuant
to Section 3(b)(ii) of the Purchase Agreement, General Counsel for the
Company shall deliver an opinion, or the Chief Executive Officer and Chief
Financial Officer of
the
Company shall provide an Officers’ Certificate, to the effect that:
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1.
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all
of the issued and outstanding shares of capital stock, equity or
membership interests of each Significant Subsidiary (including Reading
NZ)
are owned of record by the Company and the issuance of the Preferred
Securities and the Common Securities is not subject to any contractual
preemptive rights known to such
[Counsel/Officers];
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2.
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no
consent, approval, authorization or order of any court or Governmental
Entity is required for the issue and sale of the Common Securities,
the
Preferred Securities or the Junior Subordinated Notes, the purchase
by the
Company of the Common Securities, the purchase by the Trust of the
Junior
Subordinated Notes, the execution and delivery of and compliance
with the
Operative Documents by the Company, Reading NZ or the Trust or the
consummation of the transactions contemplated in the Operative Documents,
except such approvals (specified in such [Opinion/Certificate]) as
have
been obtained;
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3.
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to
the knowledge of such [Counsel/Officers], there is no action, suit
or
proceeding before or by any government, governmental instrumentality,
arbitrator or court, domestic or foreign, now pending or threatened
against or affecting the Trust or the Company or any Significant
Subsidiary (including Reading NZ) that could adversely affect the
consummation of the transactions contemplated by the Operative Documents
or could have a Material Adverse Effect on the Company and its
subsidiaries;
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4.
|
Each
of the Company and Reading NZ is not, and, immediately following
consummation of the transactions contemplated by the Operative Documents
and the application of the net proceeds therefrom, will not be, an
“investment company” or, to such [Counsel’s/Officers] knowledge, is not,
or, immediately following consummation of the transactions contemplated
by
the Operative Documents and the application of the net proceeds therefrom,
will not be, an entity “controlled” by an “investment company,” in each
case by virtue of Section 3(a) of the Investment Company Act; and
the
Trust is not, and immediately following the consummation of the
transactions contemplated by the Operative Documents and the application
of the net proceeds therefrom, the Trust will not be, an “investment
company” or an entity “controlled” by an “investment company,” within the
meaning of the Investment Company Act;
and
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5.
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the
execution, delivery and performance of the Operative Documents, as
applicable, by the Company, Reading NZ and the Trust and the consummation
by the Company, Reading NZ and the Trust of the transactions contemplated
by the Operative Documents, as applicable, (a) will not result in
any
violation of the charter or bylaws of the Company, the charter or
bylaws
or similar organizational documents of any Significant Subsidiary,
the
Trust Agreement or the Certificate of Trust of the Trust, and (b)
will not
conflict with, or result in a breach of any of the terms or provisions
of,
or constitute a default (or an event which, with notice or lapse
of time
or both, would constitute a default) under, or result in the creation
or
imposition of any lien, charge and encumbrance upon any assets or
properties of the Company or any Significant Subsidiary under, (A)
any
agreement, indenture, mortgage or instrument that the Company or
any
Significant Subsidiary is a party to or by which it may be bound
or to
which any of its assets or properties may be subject, or (B) any
existing
applicable law, Rule or administrative Regulation [FOR GENERAL COUNSEL
ONLY: except that I express no opinion with respect to the securities
laws
of the State of Delaware] of any court or governmental agency or
authority
having jurisdiction over the Company or any Significant Subsidiary
or any
of their respective assets or properties, except in case of (b),
where any
such violation, conflict, breach, default, lien, charge or encumbrance,
would not have a material adverse effect on the assets, liabilities,
properties, business, results of operations or condition (financial
or
otherwise) of the Company and their subsidiaries, taken as
whole.
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[APPLIES
ONLY TO GENERAL COUNSEL OPINION: In rendering such opinions, General
Counsel may (A) state that the above is limited to the laws of the
State
of [jurisdiction of bar admission], and (B) rely as to matters of
fact to
the extent deemed proper, on certificates of responsible officers
of the
Company and public officials.]
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ANNEX
B
Pursuant
to Section 3(c) of the Purchase Agreement, Xxxx Xxxxx LLP, special tax counsel
for the Purchaser, shall deliver an opinion to the effect that:
(i) the
Trust
will be classified for United States federal income tax purposes as a grantor
trust and not as an association or a publicly traded partnership taxable as
a
corporation; and
(ii) for
United States federal income tax purposes, the Junior Subordinated Notes will
constitute indebtedness of the Company.
In
rendering such opinions, such counsel may (A) state that its opinion is limited
to the federal laws of the United States and (B) rely as to matters of fact,
to
the extent deemed proper, on certificates of responsible officers of the Company
and public officials.
ANNEX
C
[FORM
OF DELAWARE COUNSEL TRUST OPINION PURSUANT TO SECTION
3(d)]
ANNEX
D
[FORM
OF PROPERTY/INDENTURE TRUSTEE COUNSEL OPINION PURSUANT TO SECTION3(e)]
ANNEX
E
[FORM
OF DELAWARE TRUSTEE COUNSEL OPINION PURSUANT TO SECTION
3(d)]
ANNEX
F
[FORM
OF
INDENTURE]
ANNEX
G
[FORM
OF TRUST AGREEMENT]
ANNEX
H
OFFICER'S
FINANCIAL CERTIFICATE
The
undersigned, the [Chairman/Vice Chairman/Chief Executive Officer/President/
Vice
President/Chief Financial Officer/Treasurer/Assistant Treasurer], hereby
certifies, pursuant to Section 6(h) of the Purchase Agreement, dated as of
February 5, 2007, among Reading International, Inc. (the “Company”), Reading New
Zealand, Limited, Reading International Trust I (the “Trust”), on the one hand,
and Kodiak Warehouse JPM LLC on the other hand, that, as of [date], [20___],
the
Company, if applicable, and its subsidiaries had the following ratios and
balances:
As
of
[Quarterly/Annual Financial Date], 20___
[insert
covenant compliance calculations here]
*
A table
describing the quarterly report calculation procedures is provided on
page
[FOR
FISCAL YEAR END: Attached
hereto are the audited consolidated financial statements (including the balance
sheet, income statement and statement of cash flows, and notes thereto, together
with the report of the independent accountants thereon) of the Company and
its
consolidated subsidiaries for the three years ended [date],
20_____]
[FOR
FISCAL QUARTER END: Attached
hereto are the unaudited consolidated and consolidating financial statements
(including the balance sheet and income statement) of the Company and its
consolidated subsidiaries.]
The
financial statements fairly present in all material respects, in accordance
with
U.S. generally accepted accounting principles (“GAAP”), the financial position
of the Company and its consolidated subsidiaries, and the results of operations
and changes in financial condition as of the date, and for the [______quarter
interim] [annual] period ended [date], 20_, and such financial statements
have
been prepared in accordance with GAAP consistently applied throughout the
period
involved (expect as otherwise noted therein).
IN
WITNESS WHEREOF, the undersigned has executed this Officer's Financial
Certificate as of this ________ day of [______________], 20[___].
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READING
INTERNATIONAL, INC.
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By:
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||
|
Name:
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|
Address:
000 Xxxxxxx Xxxxx, Xxxxx 000
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Xxxxxxxx,
Xxxxxxxxxx
00000
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