Asset Purchase Agreement

Definitions.  As used in this Agreement, including the recitals, the following terms have the meanings specified in this Section 1.1.  All accounting terms not specifically defined herein shall be construed in accordance with GAAP.

Construction.  As used herein, unless the context otherwise requires:  (a) references to “Article” or “Section” are to an article or section hereof; (b) all “Exhibits” and “Schedules” referred to herein are to Exhibits and Schedules attached hereto and are incorporated herein by reference and made a part hereof; (c) “include”, “includes” and “including” are deemed to be followed by “without limitation” whether or not they are in fact followed by such words or words of like import; and (d) the headings of the various articles, sections and other subdivisions hereof are for convenience of reference only and shall not modify, define or limit any of the terms or provisions hereof.  This Agreement is between financially sophisticated and knowledgeable parties and is entered into by such parties in reliance upon the economic and legal bargains contained herein.  The language used in this Agreement has been negotiated by the parties and their representatives and shall be interpreted and construed in a fair and impartial manner without regard to such factors as the party who prepared, or caused the preparation of, this Agreement or the relative bargaining power of the parties.

Sale and Purchase of Assets.  Except as otherwise provided in Section 2.3, at the Closing, Seller shall sell, transfer and assign to Buyer, and Buyer shall purchase from Seller, free and clear of any Encumbrances, all of Seller’s right, title and interest in, to and under all of the assets, properties and rights of every kind and nature, including the goodwill, and intellectual property, existing on the Closing Date and located at and used in connection with the Cinema, whether personal or commercial, tangible or intangible, in electronic form or otherwise, and whether or not any of such assets have any value for accounting purposes or are carried or reflected on or specifically referred to in Seller’s books or financial statements (collectively, the “Purchased Assets”), which shall include the following:

Cash; Etc.  At the close of business on the last business day prior to the Closing Date, Seller and Buyer shall take a physical count of the Inventory and the Petty Cash  on hand at the Cinema (the “Petty Cash”).   The Petty Cash on hand shall be valued at its face value, and shall be paid for separately at the Closing.  As of the Closing Date, Seller will have issued or sold tickets, discount vouchers or other items, in the ordinary course of business, for use by customers of the Cinema for admission to the Cinema, for concession items or for anything else of value with respect to the Cinema (“Pre-Sold Tickets”).

Retained Assets.  Except for the Purchased Assets, Buyer is not purchasing, and Seller is not selling, contracts other than the Assumed Contracts, Seller’s accounting records and corporate minute books, stock books, corporate seal, or any of the motor vehicles or other items expressly set forth on Schedule 2.3, which Schedule 2.3 shall include  the  assets or tangible assets exclusively used or exclusively pertaining to the O’Neil Cinema (in Epping, New Hampshire (“Epping Cinema”) (collectively, the “Retained Assets”).  Accounting records of Seller shall remain the exclusive property of Seller in accordance with this Section, and shall mean any and all books of original entry, including any register or computer tapes, all journals or ledgers, all canceled checks, payroll records, bank or other account statements, including account statements or reports to or from any vendors, suppliers, film companies, or otherwise, including any correspondence relating to same or to any other items designated as an accounting record hereunder, and including all financial statements, records, tax returns, and all work papers or supporting information relating thereto, including all information gathered or compiled by Seller or Seller’s agents or accountants therefor, or summaries of same, including all disks, print-outs, or other digital or analog, written or electronic recording thereof.  The Purchased Assets shall not include any Permits that are non-transferable.  Seller knows of no reason why any Permit issued to Seller for use in its business would not be issued to Buyer for use by it after the Closing, assuming only Buyer is qualified to receive same.

Assumed Liabilities.  Subject to the terms and conditions set forth herein, Buyer shall not assume and shall not be called upon to pay, perform or discharge any Liabilities of Seller other than Liabilities of the Seller arising on or after the Closing Date under any Assumed Contracts.

Retained Liabilities.  Except for any expressly Assumed Liabilities, Buyer does not hereby and shall not assume or in any way undertake to pay, perform, satisfy or discharge any other Liability of Seller, whether existing on, before or after the Closing Date or arising out of any transactions entered into, or any state of facts existing on, prior to or after the Closing Date (the “Retained Liabilities”), and Seller agrees to pay and satisfy when due all Retained Liabilities.  Without limiting the foregoing, the term “Retained Liabilities” shall include Liabilities:

Purchase Price.

Closing.  The closing of the transactions contemplated by this Agreement (the Closing”) shall take place at 10:00 a.m., local time, on January 10, 2014 or the first Friday thereafter following the satisfaction or waiver of all conditions set forth in Article VI (except for all conditions that by their terms are to be satisfied at Closing) at a mutually convenient location, or by mail or electronic communication, or at such other time or date as the parties agree (the “Closing Date”).  The Closing shall be effective at 12:01 a.m. on or before February 14, 2014, unless mutually extended in writing by the parties to this Agreement.

Payment of Purchase Price.  Simultaneously with the execution of this Agreement, Buyer shall pay to Seller the sum of $25,000.00 as a non-refundable deposit on the Purchase Price that shall be applied in partial payment of the Purchase Price at the Closing. The balance of the Purchase Price shall be paid by Buyer at the Closing in immediately available funds in accordance with Section 2.6.

Allocation of Purchase Price.  Buyer and Seller shall report the federal, state and local income and other tax consequences of the purchase and sale contemplated hereby in a manner consistent with the payment of the Purchase Price and in accordance with the rules provided in the Internal Revenue Code of 1986, as amended, including Section 1060 thereof and the Treasury Regulations thereunder, and shall not take any position inconsistent therewith upon examination of any Tax Return, in any refund claim, in any litigation, or otherwise.

Withholding Tax.  Buyer shall be entitled to deduct and withhold from the Purchase Price all Taxes that Buyer may be required to deduct and withhold under any provision of law related to Tax applicable to Seller (the “Withheld Taxes”), which Withheld Taxes shall be delivered by Buyer to the appropriate governmental authority at Closing.  The Withheld Taxes shall be used to satisfy the payment of any Tax for which the payment was withheld, with any remaining balance of the Withheld Taxes being delivered to Seller. All such withheld amounts shall be treated as delivered to Seller hereunder.

Title.  Title to all Purchased Assets shall pass from Seller to Buyer at Closing, subject to the terms and conditions of this Agreement and the transaction documents entered into by the parties and delivered at Closing.  Buyer shall not assume the risk of loss to any Purchased Assets prior to Closing.

Certain Consents.  Nothing in this Agreement shall be construed as an attempt to assign any Permit or Assumed Contract intended to be included in the Purchased Assets which is by its terms or in law non-assignable without the consent of the other party or parties thereto, unless such consent shall have been given, or as to which all the remedies for the enforcement thereof enjoyed by Seller would not, as a matter of law, pass to Buyer as an incident of the assignments provided for by this Agreement.

Apportionment and Certain Expenses.  All payments required to be made by Seller under the provisions of the Londonderry Lease Agreement or any Assumed Contract, including, without limitation, rents, additional rents, assessments, real estate taxes, insurance premiums, and common area charges of any kind (the “Payments”), shall be the sole responsibility of Seller, and Seller shall pay all amounts due and owing under the Lease Agreement or any Assumed Contract as of the Closing Date at the Closing.

Organization.  Seller is a corporation duly organized, validly existing and in good standing under the laws of the State of New Hampshire, and has the power and authority to own or lease its properties, carry on the Business as now conducted, enter into this Agreement and the Other Agreements to which it is or is to become a party and perform its obligations hereunder and thereunder.

Authorization; Enforceability.  This Agreement, and each Other Agreement to which Seller is a party, have been duly executed and delivered by, and constitute the legal, valid and binding obligations of Seller, enforceable against Seller in accordance with their respective terms.  Each Other Agreement to which Seller is to become a party pursuant to the provisions hereof, when executed and delivered by Seller, will constitute the legal, valid and binding obligation of Seller, enforceable against it in accordance with the terms of such Other Agreement.  All actions contemplated by this Section have been duly and validly authorized by all necessary proceedings by Seller.

No Violation of Laws or Agreements; Consents.  Neither the execution and delivery of this Agreement or any Other Agreement to which Seller is or is to become a party, the consummation of the transactions contemplated hereby or thereby, nor the compliance with or fulfillment of the terms, conditions or provisions hereof or thereof by Seller will: (a) contravene any provision of any Governing Document of Seller; (b) conflict with, result in a breach of, constitute a default or an event of default (or an event that might, with the passage of time or the giving of notice or both, constitute a default or event of default) under any of the terms of, result in the termination of, result in the loss of any right under, or give to any other Person the right to cause such a termination of or loss under, any Purchased Asset or any Assumed Contract to which Seller is a party or by which any of its assets may be bound or affected; (c) result in the creation, maturation or acceleration of any Liability of Seller (or give to any other Person the right to cause such a creation, maturation or acceleration); (d) violate any Law or violate any judgment or order of any Governmental Body to which Seller is subject or by which any of the Purchased Assets may be bound or affected; or (e) result in the creation or imposition of any Encumbrance upon any of the Purchased Assets or give to any other Person any interest or right therein.  Except as may be required pursuant to the terms of any Assumed Contract and as provided in Schedule 3.3 (the “Third Party Consents”), no consent, approval or authorization of, or registration or filing with, any Person is required in connection with the execution and delivery by Seller of this Agreement or any of the Other Agreements to which Seller is or is to become a party pursuant to the provisions hereof or the consummation by Seller of the transactions contemplated hereby or thereby.

Interests in Other Entities.  Seller, directly or indirectly, (a) does not own, of record or beneficially, any shares of voting stock or any other equity securities of any Person; (b) has no other ownership or equity or debt interest, of record or beneficially, in any Person, and (c) has no obligation or right, fixed or contingent, to purchase or subscribe for any interest in, advance or loan monies to, or in any way make an investment in, any Person or to share any profits or capital investments in any other Person.

Seller Financial Statements. Attached hereto as Exhibit A are Financial Statements, including income statements of Seller for the twelve (12) months ended December 31, 2011 and December 31, 2012, and for the nine (9) months ended September 30, 2013 (the “Financials”).  The Financials are materially correct and complete, and fairly present the results of operations of the Cinema for the periods then ended. Seller has no money due and owing to any film distributor in connection with the Cinema, except for money owing in the normal course of business for which an amount is not ascertainable to pay or which is not yet delinquent but will be paid by Seller when due, but in all events at or prior to Closing.

No Changes.  Seller has conducted the Business only in the ordinary course. Without limiting the generality of the foregoing sentence, there has not been any: (a) material adverse change in the Purchased Assets or the Leased Premises; (b) damage or destruction to any Purchased Asset or Leased Premises, whether or not covered by insurance, except to the extent repaired; (d) strike or other labor trouble at the Cinema; (e) increase in the salary, wage or bonus of any employee of the Cinema, except in the ordinary course of business; (f) any change in the manner in or extent to which Seller has issued or offered Pre-Sold Tickets; (g) any change in or deferral of Seller’s maintenance practices and procedures, including the maintenance and repair of the roof of the Leased Premises and of the Cinema’s heating ventilation and air conditioning equipment or systems (“HVAC”); or (h) any agreement or commitment to do any of the foregoing, except in the ordinary course of business.  Except as provided on Schedule 3.6, since January 1, 2013, Seller has not made any material changes, substitutions or replacements to the equipment, furniture or fixtures, or the managers at the Cinema.

Taxes.  Seller has filed or caused to be filed on a timely basis, or will file or cause to be filed on a timely basis, all Tax Returns that are required to be filed by it prior to or on the Closing Date, pursuant to the Law of each governmental authority with taxing power over it.  All such Tax Returns were or will be, as the case may be, correct and complete.  Seller and any Seller’s Predecessor have paid or will pay all Taxes that have or will become due as shown on such Tax Returns or pursuant to any assessment received as an adjustment to such Tax Returns.  Seller and any Seller’s Predecessor have withheld and paid all Taxes required to have been withheld in accordance with all applicable Laws in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder or other third party.

Undisclosed Liabilities.  Except for any Assumed Liabilities, Seller has no Liabilities of any kind or nature whatsoever that would attach to the Purchased Assets or for which Buyer will become liable on or after the Closing Date.

Condition of Assets; Title; Business.

Inventory.  All Inventory consists of a quality and quantity usable and salable in the ordinary course of business, is owned by Seller free and clear of all Encumbrances, and no inventory is held on a consignment basis.  The quantities of each item of inventory are not excessive, but are reasonable for the conduct of the Business and the operation of the Cinema.

No Pending Litigation or Proceedings.  Except as set forth in Schedule 3.11, no action, suit, investigation, claim or proceeding of any nature or kind whatsoever, whether civil, criminal or administrative, by or before any Governmental Body or arbitrator (“Litigation”) is pending or, to the Knowledge of Seller, threatened against or affecting Seller, the Business, the Cinema, the Leased Premises, the Purchased Assets, or any of the transactions contemplated by this Agreement or any Other Agreement, except for claims related to Retained Liabilities of Seller, claims for personal injury and worker’s compensation claims for property damage identified on Schedule 3.11, claims by Governmental Bodies identified on Schedule 3.11, or such other matters specifically disclosed in this Agreement.  Seller has not received notice of any outstanding judgment, decree or order of any Governmental Body against or affecting Seller, the Business, the Cinema, the Leased Premises, or any of the Purchased Assets, or any of the transactions contemplated by this Agreement or any Other Agreement.  Neither Seller nor the Lessor has any pending Litigation against any third party related to the Business, the Cinema, the Leased Premises, or otherwise affecting the Purchased Assets in any respect whatsoever.

Contracts.  Schedule 3.12 lists all material written contracts, leases or other agreements that Seller currently has for use at the Cinema (the “Material Contracts”).  Each Material Contract is valid and binding upon Seller in accordance with its terms and is in full force and effect.  Neither Seller nor any other party is in breach of or in default under (or is alleged to be in breach of or in default under), or has provided or received any notice of any intention to terminate any Material Contract.  The listing of any contract on Schedule 3.12 does not mean, and shall not be deemed to mean, that such contract is being assumed by Buyer, which is only assuming those contracts of Seller specifically identified as being assumed on Schedule 2.1(h).

Permits; Compliance with Law.  Subject to Section 5.10, Seller or the applicable lessor holds all health department and certificates of occupancy required under any applicable Law in connection with the operation, use and occupancy of the Cinema, including without limitation those identified on Schedule 3.13 (“Permits”).  The Purchased Assets include all Permits other than the occupancy permit which must be obtained under local law by Buyer, or would have been issued to the Lessor (or a predecessor in interest)  of the Cinema.  Seller has received no notice of any violation of Law which has not been remedied or rectified, excluding, however, any violations that are not the responsibility of Seller to remedy or rectify pursuant to the terms of the Londonderry Lease Agreement or violations that are not applicable to the Purchased Assets.  Seller further warrants and represents that; (i) all governmental and or regulatory agency inspections have been performed in accordance with the applicable law and all permits and licensing, including building permits, certificates of occupancy, fire safety compliance and health department approvals are valid without conditions or objections at the time of Closing, (ii) to Seller’s Knowledge, no condition exists at the Cinema (with respect to the Leased Premises or the Purchased Assets) that requires any repair to be undertaken and completed in order for the Cinema and the Business to be in compliance with any health or safety regulations.

Real Estate. The Londonderry Lease Agreement is the only agreement entered into by Seller (or Seller’s Predecessors) applicable to Seller’s leasehold real property that is used in or necessary for the conduct of the Business.  The Londonderry Lease Agreement identified on Schedule 2.1(b)  is the only lease, sublease, license, concession or other agreement (whether written or oral), including all amendments, extensions, renewals, guaranties and other agreements with respect thereto, pursuant to which Seller holds or operates the Cinema.  With respect to the Londonderry Lease Agreement:

Labor Relations.  No employee of Seller is represented by any union or other labor organization. No representation election, arbitration proceeding, grievance, labor strike, dispute, slowdown, stoppage or other labor trouble is pending or, to the Knowledge of Seller, threatened against, involving, affecting or potentially affecting Seller, except as disclosed on Schedule 3.15 No complaint against Seller or any Seller’s Predecessor is pending or, to the knowledge of Seller, threatened before the National Labor Relations Board, the Equal Employment Opportunity Commission or any similar state or local agency, by or on behalf of any employee of Seller or any Seller’s Predecessor. To the Knowledge of Seller, Seller has no Liability for any occupational disease of any of its employees, former employees or others.

Insurance.  Schedule 3.16 discloses all material insurance policies with respect to which either Seller or any Seller’s Predecessor is the owner, insured or beneficiary, which shall specifically exclude any insurance policies held by any lessor.  Seller has paid all premiums with respect to such insurance policies and is not in default under any such insurance policy.

Intellectual Property Rights.  Seller neither owns nor is a licensee to any form of Intellectual Property Rights related to the Cinema other than the rights to show films to the public according to agreements which are Retained Assets and Retained Liabilities. To the Knowledge of Seller, no other Person has any rights to the names “O’Neil Cinemas” or the “Oneil Cinemas” in connection with the use of a movie theater in the State of New Hampshire.  Seller has not received notice informing Seller that it has infringed upon the intellectual property rights of any other Person in connection with the operation of the Cinema.  Schedule 3.17 identifies all computer software owned by Seller that will be included as part of the Purchased Assets.  With respect to any such computer software identified on Schedule 3.17, Seller makes no agreement or other warranties or representations hereunder other than that Seller is a licensee of certain software used by it in connection with certain computer hardware or other equipment that Seller is selling to Buyer hereunder and as to any license for software used with respect to said computer hardware or equipment.

Employee Benefits.  Except for medical and dental coverage, life insurance, and long-term disability plans described on Schedule 3.18, Seller does not maintain any Benefit Plan for any employees employed at the Cinema.  After the Closing, Buyer will not have any Liability with respect to any Benefit Plan of Seller or any other member of Seller Group, whether as a result of delinquent contributions, distress terminations, fraudulent transfers, failure to pay premiums to the PBGC, withdrawal Liability or otherwise.  As of the date on such Schedule, Schedule 3.18 identifies the names of all employees of Seller employed at the Cinema, including each listed employee’s address as reported to Seller by each such employee, current compensation, vacation time to which he or she is entitled and vacation time so far taken.  Schedule 3.18 also includes copies of Seller’s payroll records for all persons currently employed by Seller at the Cinema.  There are no written or oral agreements or arrangements providing for the employment by Seller of any person at the Cinema other than “at will” agreements. All employees of Seller at the Cinema are employees at will.

Environmental Matters.  The representations and warranties contained in this Section are qualified by (i) the disclosures on Schedule 3.19, (ii) the Knowledge of Seller as to the activities any of Seller’s Predecessors, and (iii) the Knowledge of Seller as to all matters that are not the responsibility of Seller (or any of Seller’s Predecessors) under the  Lease Agreement:

Compliance; No Liability.  Seller and any Seller’s Predecessor have operated the Business and the Leased Premises in compliance with all Environmental Laws and have not received any written notice of violation of any applicable Environmental Laws related to the Cinema.  To the Knowledge of Seller, Seller is not subject to any Liability, penalty or expense (including legal fees) in connection with operation of the Cinema by virtue of any violation of any applicable Environmental Law, any environmental activity conducted on or with respect to any property, or any environmental condition existing on or with respect to any property, in each case whether or not Seller or any Seller’s Predecessors permitted or participated in such act or omission.

Treatment; CERCLIS.  Neither Seller nor any Seller’s Predecessors have treated, stored, handled, processed, recycled, transferred, released, buried or disposed of any Regulated Material on, at, in or under any part of the Cinema, and, to the knowledge of Seller, no other Person has treated, stored, handled, processed, recycled, transferred, released, buried or disposed of any Regulated Material on, at, in or under any part of the Leased Premises. There has been no release by Seller or its Affiliates, or to the Knowledge of Seller by any other Person, of any Regulated Material at, on, in or under the Leased Premises. Neither Seller nor any Seller’s Predecessors have transported or arranged for the transportation of any Regulated Material from the Cinemas to any location that is listed or proposed for listing on the National Priorities List pursuant to Superfund or on CERCLIS, or to any other location that is the subject of federal, state or local enforcement action or other investigation that may lead to claims against Seller or any Seller’s Predecessor for cleanup costs, remedial action, damages to natural resources, to other property or for personal injury including claims under Superfund, except in compliance with any applicable Environmental Laws.

Notices; Existing Claims; Certain Regulated Materials; Storage Tanks.  Neither Seller nor any Seller’s Predecessors has received any request for information, notice of claim, investigation, inquiry, demand, claim or any other form of notification that it is or may be potentially responsible with respect to any investigation, abatement or cleanup of any threatened or actual release of any Regulated Material at the Cinema.  Seller is not required to place any notice or restriction relating to the presence of any Regulated Material on the leasehold or fee interest of the Cinema.  There has been no past, and there is no pending or contemplated, claim by Seller or any Seller’s Predecessor under any Environmental Law or Laws based on actions of others that may impact the Cinema.  Neither Seller nor any Seller’s Predecessor is a party to or bound by any order, and have not entered into any agreement with any Person, regarding any remedial action or environmental Liability or expense with respect to the Cinema, or in connection with any Liability under any Environmental Law or Laws for which Buyer would be liable after Closing.  Seller is not the registered owner of any storage tanks located on the Leased Premises, whether underground or aboveground, other than as disclosed on Schedule 3.19.  Seller has not closed or caused to be closed any underground storage tank on the Leased Premises.

Additional Cinemas.  Neither Seller nor any of Seller’s Principals has knowledge of the intention by any Person to construct or open any movie theater within a ten (10) mile radius of the Cinema, except as may be disclosed in Schedule 3.20.

Finders’ Fees.  Neither Seller nor any of its officers, managers or employees has employed any broker or finder or incurred any Liability for any brokerage fee, commission or finder’s fee in connection with any of the transactions contemplated hereby or by any Other Agreement.

Suppliers.  Schedule 3.22 sets forth with respect to the Business the top fifteen (15) suppliers of goods or services to the Business for the most recent twelve (12) months ended September 30, 2013, such suppliers’ contact information and the amounts purchased from such supplier during such period.  For the avoidance of doubt, suppliers shall include, but not be limited to, movie distributors, concession suppliers, advertising companies, cleaning services, maintenance services, and projection booth services.  Seller has not received any notice that any of the suppliers has ceased, or intends to cease, to supply goods or services to the Business or to otherwise terminate or materially reduce its relationship with the Business.

Organization.  Buyer is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware, will be qualified to do business in the State of New Hampshire as of the Closing Date, and has the corporate power and authority to own or lease its properties, carry on its business, enter into this Agreement and the Other Agreements to which it is or is to become a party and perform its obligations hereunder and thereunder.

Authorization and Enforceability.  This Agreement and each Other Agreement to which Buyer is a party have been duly executed and delivered by, and constitute the legal, valid and binding obligations of Buyer, enforceable against it in accordance with their respective terms.  Each Other Agreement to which Buyer is to become a party pursuant to the provisions hereof, when executed and delivered by Buyer, will constitute the legal, valid and binding obligation of Buyer, enforceable against Buyer in accordance with the terms of such Other Agreement.  All actions contemplated by this Section 4.2 have been duly and validly authorized by all necessary proceedings by Buyer.

No Violation of Laws; Consents.  Neither the execution and delivery of this Agreement or any Other Agreement to which Buyer is or is to become a party, the consummation of the transactions contemplated hereby or thereby, nor the compliance with or fulfillment of the terms, conditions or provisions hereof or thereof by Buyer will: (i) contravene any provision of the Governing Documents of Buyer, (ii) conflict with, result in a breach of, constitute a default or an event of default (or an event that might, with the passage of time or the giving of notice or both, constitute a default or event of default) under any of the terms of, result in the termination of, result in the loss of any right under, or give to any other Person the right to cause such a termination of or loss under, any contract, agreement or instrument to which either Buyer is a party or by which any of its assets may be bound or affected, (iii) result in the creation, maturation or acceleration of any Liability of Buyer (or give to any other Person the right to cause such a creation, maturation or acceleration), or (iv) violate any Law or any judgment or order of any Governmental Body to which Buyer is subject or by which any of its assets may be bound or affected.  No consent, approval or authorization of, or registration or filing with, any Person is required in connection with the execution or delivery by Buyer of this Agreement or any of the Other Agreements to which Buyer is or is to become a party pursuant to the provisions hereof or the consummation by Buyer of the transactions contemplated hereby or thereby.

No Pending Litigation or Proceedings.  No Litigation is pending or, to the knowledge of Buyer, threatened against or affecting Buyer or any Affiliate of Buyer in connection with any of the transactions contemplated by this Agreement or any Other Agreement to which Buyer is or is to become a party or that would, to Buyer’s knowledge, have a material adverse effect on Buyer’s business considered as a whole.

Finders’ Fees.  Neither Buyer nor any of its officers, directors or employees has employed any broker or finder or incurred any liability for any brokerage fee, commission or finder’s fee in connection with any of the transactions contemplated by this Agreement or by any other Agreement.

Conduct of Business Pending Closing.  From and after the date hereof and until the Closing Date, unless Buyer shall otherwise consent in writing, Seller shall conduct its affairs as follows:

Ordinary Course; Compliance.  The Business shall be conducted only in the ordinary course and consistent with past practice.  Seller shall maintain the Purchased Assets and shall cause the Lessor to maintain the Leased premises (including the HVAC units) consistent with past practices.  Seller shall comply in a timely fashion with the provisions of all Permits and its other agreements and commitments applicable to the Cinema.  Seller shall use good faith, commercially reasonable efforts to keep the Business organization intact, keep available the services of its present employees and preserve the goodwill of its suppliers, patrons and others having business relations with it.  Seller shall maintain in full force and effect its policies of insurance, subject only to variations required by the ordinary operations of the Business, or else shall obtain, prior to the lapse of any such policy, substantially similar coverage with insurers of recognized standing.  Seller shall not make any changes in the manner and extent to which Seller offers or sells Pre-Sold Tickets.

No Solicitation of Other Bids.  For so long as this Agreement is valid and existing, Seller shall not, directly or indirectly, encourage, solicit, initiate, facilitate or continue inquiries regarding a proposal for the purchase of the Cinema or any of the Purchased Assets, or enter into any discussions, negotiations or agreements with, or provide any information to, any Person (other than Buyer and its Affiliates) concerning a possible acquisition of the Cinema or any Purchased Assets.

Prohibited Transactions.  Seller shall not: (i) amend or terminate any Permit; (ii) cause any Liability or charge to become delinquent, other than Liabilities contested in good faith by appropriate proceedings or those being paid at Closing; (iii) enter into any employment or consulting contract or arrangement with any employee of the Cinema; (iv) take any action or omit to take any action that is reasonably likely to result in the occurrence of any event described in Section 3.6;  (v) take any action or omit to take any material action that will cause a breach or termination of any Permit, other than termination by fulfillment of the terms thereunder; or (vi) take any action or omit to take any material action inconsistent with Seller’s obligations under Section 5.1(a).

Access, Information and Documents.  Seller shall provide Buyer and  Buyer’s employees and representatives (including accountants, attorneys, environmental consultants and engineers) access during normal business hours to all of the properties, books, contracts, commitments, records, officers, personnel and accountants (including any accountants’ work papers) of Seller solely as they relate to the Cinema and shall furnish to Buyer all such documents and copies of documents and all information with respect to the properties, Liabilities and affairs of Seller (solely as they relate to the Cinema) as Buyer may reasonably request, including but not limited to weekly reports of gross box office and concession receipts at the Cinema, at the same time such reports are available to Seller’s management.  This Section 5.1(d) shall be subject to the terms and conditions set forth in Section 5.1(e).

Confidentiality.  Buyer hereby agrees that it will not disclose to any person (other than Buyer’s Lenders, employees,  representatives and Affiliates, including accountants, attorneys, environmental consultants, engineers and insurance professionals) any information they may have gained with regard to the Lease Agreement, the Leased Premises,  the operation of the Business, or the finances of Seller  which information was gained by disclosures made to it by Seller prior to, during or after the date of Closing, and that this obligation of confidentiality shall survive the Closing.  Without otherwise limiting the information subject to the obligation of confidentiality set forth above, the information to be kept confidential by Buyer and Buyer’s Affiliates, as is set forth above, shall include the Financials provided to Buyer, the financial representations made hereunder and any information contained in any accounting records of Seller as may have been disclosed or made available to Buyer and Buyer’s Affiliates in their review of the Business prior to Closing.

Fulfillment of Agreements.  Each party hereto shall use commercially reasonable efforts to cause all of those conditions to the obligations of the other under Article VI that are not beyond its reasonable control to be satisfied on the date specified herein or, if no date is specified herein, then on or prior to the Closing, and shall use commercially reasonable efforts to take, or cause to be taken, all action and to do, or cause to be done, all things necessary, proper or advisable to consummate and make effective the transactions contemplated by this Agreement.

Employment, Severance and Termination Payments.  Seller agrees to pay, perform and discharge any and all severance payments, payroll and employment related Liabilities with respect to employees of Seller at the Cinema accruing up to the close of business on the date immediately preceding the Closing Date, and shall indemnify and hold harmless Buyer and its directors, officers and Affiliates from and against any and all losses, Liabilities, damages, costs and expenses, including reasonable legal fees and disbursements, that any of the aforesaid may suffer or incur by reason of or relating to any such Liabilities.

Seller’s Employees.  Buyer shall have the right, but not the obligation, to offer employment to any of the employees of Seller or its Affiliates who are employed at the Cinema.  At or prior to the Closing, Seller shall fully compensate all employees of Seller at the Cinema for all work performed prior to the Closing Date. Seller does not guaranty that any of the employees to which Buyer will offer employment will accept any such offer of employment.

Workers’ Compensation and Disability Claims.

Seller’s Liability.  Seller shall remain liable for all Liability related to workers’ compensation, disability and occupational diseases of or with respect to all of Seller’s employees attributable to injuries, claims, conditions, events and occurrences occurring prior to the Closing Date, which Liability shall be a Retained Liability.

Buyer’s Liability.  Buyer shall be liable for all Liability related to workers’ compensation, disability and occupational diseases of or with respect to all of employees of Seller hired by Buyer attributable to injuries, claims, conditions, events and occurrences first occurring on or after the Closing Date.

Restrictive Covenants.

Covenant Not to Disrupt.  For a period of three years from and after the Closing Date, neither Seller nor Buyer shall  directly or indirectly, interfere with, disrupt or attempt to disrupt any present or prospective relationship, contractual or otherwise, between Buyer or Seller or any of its respective Affiliates, on the one hand, and any of its respective customers, contractees, suppliers or employees, on the other hand.

Covenant Not to Disparage.  From and after the Closing Date, neither Seller nor Buyer shall at any time, directly or indirectly, disparage or make any statement or publication that is intended to or has the effect of disparaging, impugning or injuring the reputation or business interests of the other party and any of its respective Affiliates or any of its respective products, services, officers, managers, representatives or employees regardless of any perceived truth of such statement or publication.

Enforcement.  The restrictive covenants contained in this Section 5.6 are covenants independent of any other provision of this Agreement and the existence of any claim that Seller may allege against any other party to this Agreement, whether based on this Agreement or otherwise, shall not prevent the enforcement of these covenants, except to the extent necessary to enforce any legal rights and remedies available to Seller.  Seller agrees that Buyer’s remedies at law for any breach or threat of breach by Seller of the provisions of this Section 5.6 will be inadequate, and that Buyer shall be entitled to an injunction or injunctions to prevent breaches of the provisions of this Section 5.6 and to enforce specifically the terms and provisions hereof, in addition to any other remedy to which Buyer may be entitled at law or equity.  In the event of litigation regarding the covenants in this Section 5.6, the prevailing party in such litigation shall, in addition to any other remedies the prevailing party may obtain in such litigation, be entitled to recover from the other party its reasonable legal fees and out- of- pocket costs incurred by such party in enforcing or defending its rights hereunder.  The length of time for which these covenants shall be in force shall not include any period of violation or any other period required for litigation during which Buyer seeks to enforce these covenants.  Should any provision of this Section 5.6 be adjudged to any extent invalid by any competent tribunal, such provision will be deemed modified to the extent necessary to make it enforceable.

Publicity.  Without limiting Section 5.1(e), and notwithstanding the provisions discussed in this Section 5.7, Seller acknowledges that Buyer Manager is subject to the reporting requirements of the Securities Exchange Act of 1934, as amended, and that the Laws to which Buyer Manager is subject may require disclosure of certain information related to the Cinema, the Business, this Agreement and the transactions contemplated hereby.   Such disclosure shall not violate any of the conditions set forth herein.  Seller and Buyer shall not issue any press release or otherwise make any announcements to the public or to the employees of Seller with respect to this Agreement prior to the Closing Date without the prior written consent of the other, except as required by Law.  If Buyer believes that a public disclosure of the transactions contemplated hereby is required by law, Buyer shall give to Seller notice thereof at least 24 hours prior to making such disclosure, and the scope of such disclosure shall be subject to Seller’s prior written consent.  Further with respect to any announcement to the employees, such announcement shall not be made until all conditions of Closing have been satisfied or waived by the applicable party.

Transitional Matters.

Books and Records.  Seller shall not destroy or dispose of any books, records, and files relating to the Business to the extent that they pertain to the Business prior to the Closing Date or for a period of three years thereafter.

Permits.  Seller, at no cost to Seller, shall use its best efforts to assist Buyer in confirming or obtaining valid Permits for the Cinema prior to Closing, to the extent same are transferable.  In the event that Seller is unable to do so by Closing, then Seller shall provide Buyer with such Permits within 30 days after Closing.  Seller is in compliance with all Permits required under Environmental Laws (“Environmental Permits”), if any, with respect to the ownership and operation of the Business and the Cinema, and a list of all Environmental Permits is provided on Schedule 5.10 hereto.

Mail.  Seller authorizes and empowers Buyer on and after the Closing Date to receive and open the mail and other communications received by Buyer relating to the Business and the Purchased Assets and to deal with the contents of such communications in any proper manner.  Seller shall promptly deliver to Buyer any mail or other communication received by it on or after the Closing Date pertaining to the Business, the Purchased Assets or any Assumed Liabilities.  Buyer shall promptly return to Seller any mail or other communication received by it on or after the Closing Date not pertaining to the Business, the Purchased Assets or any Assumed Liabilities.

Conditions Precedent to Obligation of Buyer.  The obligation of Buyer to proceed with the Closing under this Agreement is subject to the fulfillment prior to or at Closing of the following conditions, any one or more of which may be waived in whole or in part by Buyer at Buyer’s sole option:

Bring down of Representations and Warranties; Covenants.  Each of the representations and warranties of Seller contained in this Agreement shall be true and correct in all respects on and as of the Closing Date, with the same force and effect as though such representations and warranties had been made on, as of and with reference to the Closing Date.  Seller shall have performed in all material respects all of the covenants and complied with all of the provisions required by this Agreement to be performed or complied with by it at or before the Closing.

Litigation.  No statute, regulation or order of any Governmental Body shall be in effect that restrains or prohibits the transactions contemplated hereby or that would, after Closing, limit or adversely affect Buyer’s ownership of the Purchased Assets or access to the Leased Premises in a manner different from Seller’s, and there shall not have been threatened, nor shall there be pending, any action or proceeding by or before any Governmental Body challenging the lawfulness of or seeking to prevent or delay any of the Transactions contemplated by this Agreement or any of the Other Agreements or seeking monetary or other relief by reason of the consummation of any of such transactions.

No Material Adverse Change.  Between the date hereof and the Closing Date, there shall have been no material adverse change, regardless of insurance coverage therefor, in the Business or any of the Purchased Assets, or in the results of operations or condition of the Cinema, the Leased Premises or of Buyer or Buyer’s Manager.

Cinema Revenue Data.  Seller shall provide Buyer with statements for the period from October 1, 2013 through the end of the last month before the month in which the Closing occurs, that fairly and accurately present the aggregate gross box office revenues and the aggregate gross concession revenues for the Cinema for such period.

Closing Certificate. Seller shall have delivered a certificate, dated the Closing Date, certifying to the fulfillment of the conditions set forth in subparagraphs (a), (b), (c) and (d) of this Section 6.1. Such certificate shall constitute a representation and warranty of Seller with regard to the matters therein for purposes of this Agreement.

Closing Documents.  Buyer shall have received the other documents referred to in Section 6.3(a).  All agreements, certificates, opinions and other documents delivered by Seller to Buyer hereunder shall be in form and substance reasonably satisfactory to Buyer and Seller.

Title Insurance.  Buyer, at its sole cost and expense, shall have obtained for the Cinema final marked commitments to issue to Buyer ALTA (1990-Form B with appropriate state endorsements) leasehold policies of title insurance in coverage amounts equal to the fair market values of the leasehold interest in the Leased Premises, insuring good title to the leasehold interest in the Leased Premises with mechanic’s liens coverage and such endorsements as Buyer may have reasonably requested and with exceptions only for ALTA standard printed exceptions (other than mechanic’s and materialmen’s liens and rights of possession), the  Permitted Encumbrances and all other matters of public record that are not objected to in writing by Buyer.  Seller shall have the right, but not the obligation, to cure any title matters objected to by Buyer.  Buyer shall be obligated to order commitments for the issuance of such leasehold policies of title insurance within five (5) business days after the date of this Agreement.

Member Approval. As provided for in Section 3.2, Buyer has received the approval of its members for the Transactions contemplated hereunder upon execution of this Agreement.

Release or Termination of Encumbrances.  Seller shall have caused all Encumbrances (other than Permitted Encumbrances) on the Leased Premises and the Purchased Assets to be released.

FIRPTA Certificate.  Buyer shall have received a certificate pursuant to Treasury Regulations Section 1.1445-2(b) (the “FIRPTA Certificate”) that Seller is not a foreign person within the meaning of Code Section 1445, duly executed by Seller.

Due Diligence.  Buyer and its Affiliates shall use commercially reasonable efforts to complete their due diligence investigation of the Cinema and the Business, and Buyer and its Affiliates, in their reasonable discretion, shall have discovered no defect or condition applicable to the leasehold title to the Leased Premises, the Cinema or the other Purchased Assets that could materially adversely affect operations of the Cinema on and after the Closing Date.

Conditions Precedent to Obligation of Seller.  The obligation of Seller to proceed with the Closing under this Agreement is subject to the fulfillment prior to or at Closing of the following conditions, any one or more of which may be waived in whole or in part by Seller at Seller’s sole option:

Bring down of Representations and Warranties; Covenants.  Each of the representations and warranties of Buyer contained in this Agreement shall be true and correct in all material respects on and as of the Closing Date, with the same force and effect as though such representations and warranties had been made on, as of and with reference to the Closing Date.  Buyer shall have performed all of the covenants and complied in all respects with all of the provisions required by this Agreement to be performed or complied with by it at or before the Closing.

Litigation.  No statute, regulation or order of any Governmental Body shall be in effect that restrains or prohibits the transactions contemplated hereby, and there shall not have been threatened, nor shall there be pending, any action or proceeding by or before any Governmental Body challenging the lawfulness of or seeking to prevent or delay any of the transactions contemplated by this Agreement or by any other Agreement or seeking monetary or other relief by reason of the consummation of such transactions.

Closing Certificate. Buyer shall have delivered a certificate, dated the Closing Date, certifying to the fulfillment of the conditions set forth in subparagraphs (a) and (b) of this Section 6.2. Such certificate shall constitute a representation and warranty of Buyer with regard to the matters therein for purposes of this Agreement.

Closing Documents.  Seller shall also have received the other documents referred to in Section 6.3(b).  All agreements, certificates, opinions and other documents delivered by Buyer to Seller hereunder shall be in form and substance reasonably acceptable to Seller and Buyer.

Board Approval.  As provided for in Section 3.2, Seller has received the approval of its Board of Directors for the transactions contemplated hereunder with the execution of this Agreement.

Deliveries and Proceedings at Closing.

Deliveries by Seller.  Seller shall deliver or cause to be delivered to Buyer at the Closing:

Deliveries by Buyer.  Buyer shall deliver or cause to be delivered to Seller at the Closing:

Termination.

Mutual Consent; Failure of Conditions.  Except as provided in Section 6.4(b), this Agreement may be terminated at any time prior to Closing by: (i) mutual consent of Buyer and Seller; (ii) Buyer, if any of the conditions specified in Section 6.1 or Section 6.3(a) hereof shall not have been fulfilled by the Closing Date and shall not have been waived by Buyer; (iii) Seller, if any of the conditions specified in Section 6.2 or Section 6.3(b) hereof shall not have been fulfilled by the Closing Date and shall not have been waived by Seller; (iv) Buyer, if Seller has materially breached this Agreement; or (v) Seller, if Buyer has materially breached this Agreement. In the event of termination of this Agreement by either Buyer or Seller pursuant to clause (iv) or (v) of the immediately preceding sentence, Buyer or Seller shall be liable to the other party hereto for any breach hereof by such party, which breach led to such termination, and the rights and obligations of the parties set forth in Sections 7.2, 7.3 and 8.1 shall survive such termination. Buyer and Seller shall also be entitled to seek any other remedy to which they may be entitled at law or in equity in the event of such termination, which remedies shall include injunctive relief and specific performance. Notwithstanding the foregoing, in the event that this Agreement is terminated by one party hereto pursuant to clause (iv) or (v) of the first sentence of this Section 6.4 solely as a result of a breach by the other party hereto of a representation or warranty of such other party as of a date after the date of this Agreement, which breach could not have been reasonably anticipated by such other party and was beyond the reasonable control of such other party and which has not been cured or remedied by such party, then the remedy of the party terminating this Agreement shall be limited solely to recovery of all of such party’s third party out-of-pocket costs and expenses incurred in connection herewith, up to a maximum amount of $10,000.00, and if the non-breaching party is Buyer, then in addition to the $10,000.00, and if the breaching party is Seller, then in addition to the $10,000.00, Buyer shall recover from Seller without protest or delay all actual out- of- pocket costs associated with the transaction contemplated by this Agreement, including but not limited to attorneys’ fees and accounting fees.

Casualty Damage.  Notwithstanding anything else herein to the contrary, if prior to Closing the Purchased Assets (or any portion thereof) are damaged by fire or any other cause, the reasonable estimate of the immediate repair of which would cost more than Fifty Thousand Dollars ($50,000.00), Buyer at its option, by providing written notice to Seller within ten (10) business days after Buyer’s receipt of notice of such loss, may declare this Agreement null and void, or Buyer may close the transactions hereunder subject to reduction of the Purchase Price by the amount of any applicable insurance deductible which shall be paid by Buyer and assignment to Buyer of the proceeds from any insurance carried by Seller covering such loss.  If prior to Closing the Purchased Assets (or any portion thereof) are damaged by fire or any other cause, the reasonable estimate of the repair of which would cost Fifty Thousand Dollars ($50,000.00) or less, such event shall not excuse Buyer from its obligations under this Agreement, but the Purchase Price shall be reduced by an amount equal to the amount of such cost and Seller shall be entitled to retain the net insurance proceeds collected or to be collected by Seller.

Survival of Representations.  All representations,  warranties and Agreements  made by any party in this Agreement or pursuant hereto shall survive the Closing; provided, however, that representations and warranties hereunder shall survive for a period of three (3) years after the Closing Date, with the exception of the representations and warranties contained in Sections 3.1, 3.2, 3.3, 3.6 and 3.8, and Sections 4.1, 4.2 and 4.3, all of which shall survive for the period of the applicable statute of limitations plus ninety (90) days.  All claims for damages made by virtue of any representations, warranties and agreements herein or pursuant hereto shall be made under, and subject to the limitations set forth in, this Article VII.  The representations and warranties set forth in Articles III and IV are cumulative, and any limitation or qualification set forth in any one representation and warranty therein shall not limit or qualify any other representation or warranty therein.  Except for the respective representations and warranties of each party hereto expressly contained in this Agreement or the Other Agreements, no party hereto is making and each party specifically disclaims any representations or warranties of any kind or character, express or implied.

Indemnification by Seller.  Seller shall indemnify, defend, save and hold Buyer and its managers, officers, members, employees, agents and Affiliates (collectively, “Buyer Indemnitees”) harmless from and against all demands, claims, actions or causes of action, assessments, losses, damages, deficiencies, Liabilities, costs and expenses (including reasonable legal fees, interest, penalties, and all reasonable amounts paid in investigation, defense or settlement of any of the foregoing; collectively, “Buyer Damages”) asserted against, imposed upon, resulting to, required to be paid by, or incurred by any Buyer Indemnitee, directly or indirectly, in connection with, arising out of, resulting from, or which would not have occurred but for (a) a material breach of any representation or warranty made by Seller in this Agreement, in any certificate or document furnished pursuant hereto by Seller or any Other Agreement to which Seller is to become a party, (b) a breach or nonfulfillment of any covenant or agreement made by Seller or in or pursuant to this Agreement and in any Other Agreement to which Seller is or is to become a party, (c) any Retained Asset or Retained Liability, (d) any successor liability (or Liabilities based on similar theories) arising out of any facts or circumstances occurring prior to the Closing Date or Liability arising out of or attaching by virtue of Seller being a member of a controlled group or affiliated group of entities, (e) any  demand or claim for any finder’s fee related the this Agreement or any transaction contemplated hereby, and (f) the provisions of 29 U.S.C. §§ 1161-1168, as same may be amended from time to time, and the regulations and rulings thereunder, with respect to the employees of Seller at the Cinema.

Indemnification by Buyer.  Buyer shall indemnify, defend, save and hold Seller and its managers, officers, members, employees, Affiliates and agents (collectively, “Seller Indemnitees”) harmless from and against any and all demands, claims, actions or causes of action, assessments, losses, damages, deficiencies, Liabilities, costs and expenses (including reasonable legal fees, interest, penalties, and all reasonable amounts paid in investigation, defense or settlement of any of the foregoing; collectively, “Seller Damages”) asserted against, imposed upon, resulting to, required to be paid by, or incurred by any Seller Indemnitee, directly or indirectly, in connection with, arising out of, resulting from, or which would not have occurred but for (a) a material breach of any representation or warranty made by Buyer in this Agreement or in any certificate or document furnished pursuant hereto by Buyer or any Other Agreement to which either Buyer is or is to become a party, (b) a breach or nonfulfillment of any covenant or agreement made by any Buyer in or pursuant to this Agreement and in any Other Agreement to which either Buyer is or is to become a party, and (c) any and all liability or obligations related to the Purchased Assets that accrue or occur on or after the Closing Date including, but not limited to Buyer’s failure to comply with the terms of the Lease Agreement.

Notice of Claims.  If any Buyer Indemnitee or Seller Indemnitee (an “Indemnified Party”) believes that it has suffered or incurred or will suffer or incur any Damages for which it is entitled to indemnification under this Article VII, such Indemnified Party shall so notify the party or parties from whom indemnification is being claimed (the “Indemnifying Party”) with reasonable promptness and reasonable particularity in light of the circumstances then existing.  If any action at law or suit in equity is instituted by or against a third party with respect to which any Indemnified Party intends to claim any Damages, such Indemnified Party shall promptly notify the Indemnifying Party of such action or suit.  The failure of an Indemnified Party to give any notice required by this Section 7.4 shall not affect any of such party’s rights under this Article VII or otherwise, except to the extent such failure is actually prejudicial to the rights or obligations of the Indemnified Party.

Third Party Claims.  The Indemnifying Party shall have the right to conduct and control, through counsel of its choosing, the defense of any third party claim, action or suit, and the Indemnifying Party may compromise or settle the same, provided that the Indemnifying Party shall give the Indemnified Party advance notice of any proposed compromise or settlement.  The Indemnifying Party shall permit the Indemnified Party to participate in the defense of any such action or suit through counsel chosen by the Indemnified Party, provided that the fees and expenses of such counsel shall be borne by the Indemnified Party (subject to reimbursement pursuant to Section 7.2 or 7.3, as the case may be).

Limitation on Indemnification.  No Indemnified Party shall be entitled to make a claim for indemnification for inaccuracy in or breach of representation or warranty pursuant to clause (a) of Section 7.2 until the cumulative and aggregate amount of all Damages as a result of all matters covered by clause (a) of Section 7.2 exceeds Fifteen Thousand Dollars ($15,000.00) (the “Basket Amount”).  If and when such damages do exceed the Basket Amount, then the Indemnified Party shall be entitled to indemnification for all such damages in excess of the Basket Amount; provided, however, that if damages arising out of or relating to any inaccuracy in or breach of representation or warranty set forth in Section 3.6, Section 3.9 or Section 3.21 in the aggregate exceed the Basket Amount, then Buyer shall be entitled to indemnification for all such damages therefrom, and the Basket Amount shall not limit in any way whatsoever Buyer’s right to be indemnified for all such damages.  Nothing is this Section 7.6 shall limit the responsibility of Seller for any Seller’s Repairs designated as its responsibility pursuant to Section 3.9 and identified on the certificate the Buyer at Closing pursuant to Section 6.3(a)(xiii).  Any indemnification payment under this Agreement shall take into account and be reduced by any insurance proceeds or other third party reimbursement actually received (other than the proceeds of any self insurance or, to the extent it is the economic equivalent of self insurance, any insurance that is retrospectively rated).  The indemnifications provided for in Section 7.1 above shall survive for a period of three (3) years from the Closing Date.

Payment.  All indemnification payments under this Article VII shall be made promptly in cash.  All indemnifications payments under this Article VII shall be treated by the parties as an adjustment to the Purchase Price for Tax purposes, unless otherwise required by Law.

Notification of Material Events or Changes.  Seller will promptly notify Buyer of any material event or change in the business or affairs of Seller , in the condition of the Leased Premises or any of the Purchased Assets, or the filing of any material litigation affecting the Purchased Assets which may occur during the period extending from the date hereof until the Closing Date, whether or not occurring in the usual or ordinary course of business, and which would affect Seller’s ability to complete the transactions contemplated by this Agreement or by the Other Agreements.

Costs and Expenses.  Buyer and Seller shall each pay its respective expenses, brokers’ fees and commissions, and expenses incurred in connection with this Agreement and the transactions contemplated hereby, including all accounting, legal and appraisal fees and settlement charges.  All transfer taxes, if any, incurred as a result of the transfer of the Purchased Assets shall be paid by Seller.

Bulk Sales.  The parties hereto waive compliance with the provisions of any bulk sales law applicable to the transactions contemplated hereby, and, notwithstanding anything else in this Agreement to the contrary, Seller shall hold Buyer harmless from and against all claims asserted against the Purchased Assets or Buyer pursuant to such bulk sales laws.  Seller agrees to pay timely its account creditors with respect to liabilities not being assumed by Buyer hereunder.

Transfer Taxes.  All transfer, documentary, sales, use, stamp, registration, value added and other such Taxes and fees (including any penalties and interest) incurred in connection with this Agreement and the Other Agreements (including any real property transfer Tax and any similar Tax) shall be borne and paid by Seller when due.  Seller shall, at its own expense, timely file any Tax Return or other document with respect to such Taxes or fees (and Buyer shall cooperate with respect thereto as necessary).

Further Assurances.  Seller shall, at any time and from time to time on and after the Closing Date, upon the reasonable request by Buyer and without further consideration, take or cause to be taken such actions and execute, acknowledge and deliver, or cause to be executed, acknowledged and delivered, such instruments, documents, transfers, conveyances and assurances as may be required or desirable (i) for the better conveying, transferring, assigning, delivering, assuring and confirming the Purchased Assets to Buyer or (ii)  to enable Buyer Manager to make the requisite public filings and disclosures, including financial disclosures, applicable to Buyer Manager under Law (including any federal securities laws).

Notices.  All notices and other communications given or made pursuant to this Agreement shall be in writing and shall be deemed to have been duly given or made (i) the fifth (5th) business day after the date of mailing, if delivered by registered or certified mail, postage prepaid,  (ii) upon delivery, if sent by hand delivery,  (iii) upon delivery, if sent by prepaid courier, with a record of receipt, or (iv) the next day after the date of dispatch, if sent by cable, telegram, facsimile or electronic mail (with a copy simultaneously sent by registered or certified mail, postage prepaid, return receipt requested), to the parties at the following addresses:

Currency.  All currency references herein are to United States dollars.

Off-Set, Assignment; Governing Law.   Buyer shall be entitled to offset or recoup from amounts due to Seller from Buyer hereunder or under any Other Agreement (including Seller Damages) against any obligations of Seller to Buyer hereunder or under any Other Agreement (including Buyer Damages), and to offset from amounts due to Lessor from Buyer under the New Lease Agreement against any obligations of Seller to Buyer with respect to Pre-Sold Tickets. This Agreement and all the rights and powers granted hereby shall bind and inure to the benefit of the parties hereto and their respective permitted successors and assigns.  This Agreement and the rights, interests and obligations hereunder may not be assigned by any party hereto without the prior written consent of the other parties hereto, except that Buyer may make such assignment to any Affiliate of such Buyer provided that such Buyer remains liable hereunder.  This Agreement shall be governed by and construed in accordance with the laws of the State of New Hampshire without regard to its conflict of law doctrines.

Amendment and Waiver; Cumulative Effect.  To be effective, any amendment or waiver under this Agreement must be in writing and be signed by the party against whom enforcement of the same is sought.  Neither the failure of any party hereto to exercise any right, power or remedy provided under this Agreement or to insist upon compliance by any other party with its obligations hereunder, nor any custom or practice of the parties at variance with the terms hereof shall constitute a waiver by such party of its right to exercise any such right, power or remedy or to demand such compliance.  The rights and remedies of the parties hereto are cumulative and not exclusive of the rights and remedies that they otherwise might have now or hereafter, at law, in equity, by statute or otherwise.

Entire Agreement; No Third Party Beneficiaries.  This Agreement and the Schedules and Exhibits set forth all of the promises, covenants, agreements, conditions and undertakings between the parties hereto with respect to the subject matter hereof, and supersede all prior or contemporaneous agreements and understandings, negotiations, inducements or conditions, express or implied, oral or written.  This Agreement is not intended to confer upon any Person other than the parties hereto any rights or remedies hereunder, except as provided in Sections 7.2 and 7.3 relating to Buyer Indemnitees and Seller Indemnitees.  No Person is an intended third party beneficiary of this Agreement.

Specific Performance.  The parties hereto agree that irreparable damage would occur if any provision of this Agreement were not performed in accordance with the terms hereof and that the parties shall be entitled to specific performance of the terms hereof, in addition to any other remedy to which they are entitled at law or in equity.

Severability.  If any term or other provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal or incapable of being enforced under any rule of Law in any particular respect or under any particular circumstances, such term or provision shall nevertheless remain in full force and effect in all other respects and under all other circumstances, and all other terms, conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party.  Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are fulfilled to the fullest extent possible.

Counterparts.  This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original but all of which together shall be deemed to be one and the same instrument.