Partnership Interest Purchase Agreement between Lions Gate Entertainment Corp., Lions Gate Films Corp., and Bosa Development Corp.
This agreement is between Lions Gate Entertainment Corp. and Lions Gate Films Corp. (the sellers) and Bosa Development Corp. and 0742102 B.C. Ltd. (the buyers). The sellers agree to sell their partnership interests in Lions Gate Studios Partnership, as well as shares in Lions Gate Studio Management Ltd., to the buyers. The agreement outlines the purchase price, payment terms, representations and warranties, closing arrangements, and indemnification provisions. It also includes conditions for the sale, confidentiality requirements, and procedures for resolving disputes. The transaction is governed by the laws of British Columbia.
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ARTICLE 1 | INTERPRETATION | 2 | ||||||
1.1 | Definitions | 2 | ||||||
1.2 | Headings and Table of Contents | 8 | ||||||
1.3 | Extended Meanings | 8 | ||||||
1.4 | Business Days | 8 | ||||||
1.5 | Currency and Payment Obligations | 9 | ||||||
1.6 | Statute References | 9 | ||||||
1.7 | § and Schedule References | 9 | ||||||
ARTICLE 2 | PURCHASE OF PARTNERSHIP INTEREST | 10 | ||||||
2.1 | Agreement to Purchase and Sell | 10 | ||||||
2.2 | Excluded Assets | 10 | ||||||
2.3 | Amount of Purchase Price | 10 | ||||||
2.4 | Payment of Purchase Price | 10 | ||||||
2.5 | Application of Deposit | 10 | ||||||
2.6 | Items of Adjustment | 11 | ||||||
2.7 | Statement of Adjustments | 12 | ||||||
2.8 | Allocation of Purchase Price | 12 | ||||||
2.9 | Taxes | 12 | ||||||
ARTICLE 3 | INITIAL APPROVAL PERIOD | 13 | ||||||
3.1 | Productions by Vendor | 13 | ||||||
3.2 | Searches and Examinations | 13 | ||||||
3.3 | Disclosure of Pre-Closing Transactions | 13 | ||||||
3.4 | Confidentiality | 14 | ||||||
ARTICLE 4 | CONDITIONS | 15 | ||||||
4.1 | Purchasers Conditions During Initial Approval Period | 15 | ||||||
4.2 | Consideration For Conditions | 15 | ||||||
ARTICLE 5 | REPRESENTATIONS, WARRANTIES AND COVENANTS | 16 | ||||||
5.1 | Representations and Warranties of the Vendor | 16 | ||||||
(a) | Incorporation of Vendor | 16 | ||||||
(b) | Authorization by Vendor | 16 | ||||||
(c) | Residence of Vendor | 16 | ||||||
(d) | Ownership of Partnership Interest | 16 | ||||||
(e) | Existence of Partnership | 16 | ||||||
(f) | Ownership of Shares | 16 | ||||||
(g) | Title to Assets | 16 |
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(h) | Ownership of Real Property | 17 | ||||||
(i) | Financial Statements | 17 | ||||||
(j) | Material Contracts | 17 | ||||||
(k) | Compliance with Applicable Law | 17 | ||||||
(l) | Licences and Permits | 17 | ||||||
(m) | Undisclosed Liabilities/Guarantees | 17 | ||||||
(n) | Consents and Approvals and Notices | 17 | ||||||
(o) | Absence of Conflicting Agreements | 18 | ||||||
(p) | Litigation | 18 | ||||||
(q) | Insurance | 18 | ||||||
(r) | Tax Filings | 18 | ||||||
(s) | Taxes Paid | 19 | ||||||
(t) | Undepreciated Capital Cost | 19 | ||||||
(u) | Withholdings and Remittances | 19 | ||||||
(v) | Indebtedness | 19 | ||||||
(w) | Incorporation of Registered Owner | 19 | ||||||
(x) | Power, Capacity and Authority of Registered Owner | 19 | ||||||
(y) | Minute Book of Registered Owner | 19 | ||||||
(z) | Obligations | 20 | ||||||
(aa) | Liabilities | 20 | ||||||
(bb) | Services | 20 | ||||||
(cc) | Encroachments | 20 | ||||||
(dd) | Land Use | 20 | ||||||
(ee) | Expropriation | 20 | ||||||
(ff) | Environmental Laws | 20 | ||||||
(gg) | Hazardous Substances | 21 | ||||||
(hh) | Material Effect | 21 | ||||||
(ii) | Employee Matters | 21 | ||||||
(jj) | Absence of Certain Changes or Events | 21 | ||||||
(kk) | Enforceability of Obligations | 22 | ||||||
5.2 | Representations and Warranties of the Purchaser | 22 | ||||||
(a) | Incorporation and Power | 22 | ||||||
(b) | Due Authorization | 22 | ||||||
(c) | Enforceability of Obligations | 23 |
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(d) | GST Registration | 23 | ||||||
(e) | Review Materials | 23 | ||||||
5.3 | Survival of Representations and Warranties | 23 | ||||||
5.4 | Covenants of the Purchaser | 23 | ||||||
(a) | Employees | 23 | ||||||
(b) | Lions Gate Studios | 24 | ||||||
5.5 | As Is Condition | 24 | ||||||
ARTICLE 6 | CLOSING ARRANGEMENTS | 24 | ||||||
6.1 | Closing | 24 | ||||||
6.2 | Vendors Closing Deliveries | 24 | ||||||
6.3 | Purchasers Closing Deliveries | 26 | ||||||
6.4 | Preparation of Closing Documents | 26 | ||||||
6.5 | GST | 26 | ||||||
6.6 | Registration and Other Costs | 26 | ||||||
6.7 | Purchasers Post-Closing Deliveries | 27 | ||||||
6.8 | Purchasers Financing | 27 | ||||||
6.9 | Use of Name | 27 | ||||||
ARTICLE 7 | INDEMNIFICATION | 27 | ||||||
7.1 | Indemnity by the Purchaser | 27 | ||||||
7.2 | Indemnity by the Vendor | 28 | ||||||
7.3 | Survival of Indemnification | 29 | ||||||
7.4 | Notice of Claim | 29 | ||||||
7.5 | Direct Claims | 29 | ||||||
7.6 | Third Party Claims | 29 | ||||||
7.7 | Settlement of Third Party Claims | 30 | ||||||
7.8 | Interest on Claims and GST | 30 | ||||||
ARTICLE 8 | GENERAL | 30 | ||||||
8.1 | Arbitration | 30 | ||||||
8.2 | Public Announcements | 31 | ||||||
8.3 | Notices | 31 | ||||||
8.4 | Tender | 32 | ||||||
8.5 | Time of Essence | 33 | ||||||
8.6 | Entire Agreement | 33 | ||||||
8.7 | Waiver and Amendment | 33 | ||||||
8.8 | Severability | 33 | ||||||
8.9 | Further Assurances | 33 | ||||||
8.10 | Access to Books and Records | 33 |
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8.11 | Governing Law | 33 | ||||||
8.12 | Successors and Assigns | 34 | ||||||
8.13 | Counterparts | 34 |
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(a) | the Real Property; | ||
(b) | all machinery, equipment, furniture, computers, computer equipment, telecommunications systems and other chattels used in the operation of the Business; | ||
(c) | all rights and interests under or pursuant to all warranties, representations and guarantees, express, implied or otherwise, of or made by suppliers or others in connection with the Assets; | ||
(d) | the Contracts; | ||
(e) | the Licences and Permits; |
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(f) | the Books and Records; | ||
(g) | all goodwill of the Partnership; and | ||
(h) | all proceeds of any or all of the foregoing receivable after the Closing Time, |
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(a) | all business and trade names, corporate names and the name Lions Gate Studios; | ||
(b) | all inventions and patents, patent rights and patent applications (including all reissues, divisions, continuations, continuations-in-part and extensions of any patent or patent application) related to the Business set out in Schedule B; |
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(c) | all industrial designs and industrial design rights, design patents, industrial design registrations and applications for patent and registration of industrial designs related to the Business set out in Schedule B; | ||
(d) | all trade-marks (whether used with wares or services and including the goodwill attaching to such trade-marks) and registrations and applications for registration of trade-marks related to the Business set out in Schedule B; | ||
(e) | internet domain addresses of the Partnership that include the name Lions Gate; | ||
(f) | all licences of the intellectual property listed in items (a) to (e) above; | ||
(g) | all future income and proceeds from any of the intellectual property listed in items (a) to (e) above and the licences contemplated in item (f) above; and | ||
(h) | all rights to sue and otherwise enforce rights and obtain remedies by way of injunction, delivery up, damages, profits and otherwise for the past, present and future violation or infringement of any of the intellectual property listed in items (a) to (e) above and the violation of the licences contemplated in item (f) above. |
(a) | such individual is actually aware of such fact or other matter; or | ||
(b) | a prudent individual could reasonably be expected to discover or otherwise become aware of such fact or other matter in the course of conducting a reasonably comprehensive investigation concerning the existence of such fact or other matter. |
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(a) | Liens for Taxes if such Taxes are not due and payable; |
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(b) | mechanics, construction, carriers, workers, repairers, storers or other similar Liens (inchoate or otherwise) which individually or in the aggregate are not material, or which arise or are incurred in the ordinary course of the Business which have not been filed, recorded or registered in accordance with Applicable Law; | ||
(c) | minor title defects or irregularities consisting of minor survey exceptions, minor unregistered easements or rights of way, restrictions in the original grant from the Crown, restrictions implied by Applicable Law and other minor unregistered restrictions as to the use of the Real Property which title defects, irregularities or restrictions do not, in the aggregate, materially impair the operation of the Business or the continued use of the Real Property to which they relate after the Closing on substantially the same basis as such Real Property is currently being used and the Business is currently being operated; | ||
(d) | easements, covenants, rights of way and other restrictions which are registered, provided that they do not, in the aggregate, materially impair the operation of the Business or the continued use of the Real Property to which they relate after the Closing on substantially the same basis as the Business is currently being operated and such Real Property is currently being used; | ||
(e) | registered agreements with municipalities provided that they have been complied with or adequate security has been furnished to secure compliance and provided that they do not, in the aggregate, materially impair the operation of the Business or the continued use of the Real Property to which they relate after the Closing on substantially the same basis as the Business is being operated and such Real Property is currently being used; and | ||
(f) | the mortgages, charges and other Permitted Liens listed in Schedule F. |
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(a) | all dollar amounts referred to in this Agreement are stated in Canadian Dollars; and | ||
(b) | any payment contemplated by this Agreement shall be made by cash, certified cheque, bank draft, wire transfer or any other method that provides immediately available funds. |
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(a) | the Vendor shall sell the Partnership Interest to the Purchaser, and the Purchaser shall purchase the Partnership Interest from the Vendor; and |
(b) | LGEC shall sell the Shares to the Purchaser, and the Purchaser shall purchase the Shares from LGEC. |
(a) | an initial refundable deposit in the amount of $25,000 and a non-refundable deposit in the amount of $25,000 (together, the First Deposit) to be paid upon execution of this Agreement; |
(b) | a further deposit in the amount of $950,000 (the Second Deposit) to be paid concurrently with the satisfaction or waiver of the Conditions Precedent; and |
(c) | the balance to be paid at Closing. |
(a) | the non-refundable portion of the First Deposit to the Vendor; and |
(b) | the refundable portion of the First Deposit and the Second Deposit (together, the Deposits) to the Vendors Solicitors to be held in an interest bearing trust account at a Canadian chartered financial institution. |
(a) | paid to the Vendor: |
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(i) | on the Closing Date on account of the Purchase Price, if the Vendor and the Purchaser complete the Closing on the Closing Date; or |
(ii) | together with accrued interest thereon, if the Purchaser fails or refuses to complete the purchase and sale herein contemplated after the Conditions Precedent have been satisfied or waived, as liquidated damages as a genuine pre-estimate of its damages in full and final settlement of any claim which the Vendor may have against the Purchaser; or |
(b) | paid to the Purchaser: |
(i) | together with interest on the Deposit, if the Purchaser does not satisfy or waive the Conditions Precedent in the manner and within the time provided in this Agreement; or |
(ii) | if the Vendor does not satisfy or waive the conditions precedent set out in § 4.2 in the manner and within the time provided therein; or |
(iii) | if the Vendor is solely in default of its obligation to complete the Closing on the Closing Date. |
(a) | Taxes, local improvement rates and charges with respect to the Lands; |
(b) | prepaid charges, deposits, sums and fees; |
(c) | refunds; |
(d) | Accounts Payable and Accrued Liabilities; |
(e) | rents; |
(f) | utilities; |
(g) | property taxes with respect to the Lands; |
(h) | any amount payable under any Contract or Permitted Encumbrance; |
(i) | all other items reasonably capable of and, subject to the provisions of this Agreement, properly the subject of adjustment in connection with the ownership, operation and management of the Lands and the Business of |
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whatsoever nature and normally adjusted between a vendor and purchaser in similar commercial transactions, |
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(a) | such tests and inspections shall not damage the Real Property or interfere in any material way with the Vendors use and enjoyment thereof; |
(b) | no sampling, boring, drilling or other physically intrusive testing into the ground shall be made without the prior written consent of the Vendor, such consent not to be unreasonably withheld; |
(c) | any damage or alteration to the Real Property caused by such tests and inspections shall promptly be repaired by the Purchaser and restored to its condition existing prior to such tests and inspections, subject to the reasonable supervision of the Vendor; |
(d) | the Vendor shall be entitled to have a representative present during such tests and inspections; and |
(e) | prior to entering upon the Lands, the Purchaser shall deliver to the Vendor certificates of insurance evidencing coverage for the Purchasers activities on the Lands with (i) limits of not less than $1,000,000 per occurrence and $2,000,000 in the aggregate for personal injury, including bodily injury and death, and property damage; and (ii) waiver of subrogation, and further evidencing that such coverage may only be terminated or modified upon not less than thirty (30) days prior written notice to the Vendor and naming the Vendor as additional insured and loss payee. |
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(a) | Until Closing (and in the event this Agreement is terminated for any reason other than its completion, also from and after such termination), the Purchaser and its prospective lenders, partners and investors, consultants, agents, accountants, advisors and solicitors shall keep confidential all information, documentation and records obtained from the Vendor or its consultants, agents, accountants, advisors or solicitors with respect to the Assets, including without limitation, the Review Materials, as well as any information arising out of the Purchasers review and access to the Vendors records concerning the Assets, the Excluded Assets and the Business and its due diligence with respect thereto (collectively, the Confidential Information). In the event the Purchaser wishes to provide any Confidential Information to partners and investors, the Purchaser shall first notify the Vendor of its intention to provide such Confidential Information to a partner or investor and the Purchaser shall not provide any such Confidential Information without the Vendors prior written approval, such approval not to be unreasonably withheld. The Purchaser shall not use any Confidential Information for any purposes not related to this transaction. Nothing herein contained shall restrict or prohibit the Purchaser from disclosing the Confidential Information to its prospective lenders, consultants, agents, accountants, advisors and solicitors as long as such parties are informed by the Purchaser of the confidential nature of such information or the Vendor receives such other assurances as are acceptable to it. |
(b) | The Confidential Information referred to in this § 3.3 shall not include: |
(i) | public information or information in the public domain at the time of receipt by the Purchaser or its consultants, agents, advisors and solicitors; |
(ii) | information which becomes public through no fault or act of the Purchaser or its consultants, agents, advisors and solicitors; |
(iii) | information required to be disclosed by law; or |
(iv) | information received in good faith from a third party lawfully in possession of the information and not in breach of any confidentiality obligations. |
(c) | If this Agreement is terminated for any reason, the Purchaser shall promptly return to the Vendor upon request all Confidential Information |
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(other than the Purchasers notes and due diligence materials), including all copies, and shall destroy all of the Purchasers notes and due diligence materials containing Confidential Information related to the transaction described herein. |
(a) | the Purchaser is satisfied in its sole discretion with the Review Materials; and |
(b) | the Purchaser is satisfied in its sole discretion with its due diligence tests, inspections and investigations. |
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REPRESENTATIONS, WARRANTIES AND COVENANTS
(a) | Incorporation of Vendor. Each of LGEC and LGFC is a corporation duly amalgamated and validly subsisting under the laws of its governing jurisdiction. Each Vendor has the corporate power and authority and is qualified to own and dispose of its share of the Partnership Interest; | ||
(b) | Authorization by Vendor. The Vendor has the corporate power, authority and capacity to enter into this Agreement, and other instruments to be executed by it as contemplated by this Agreement and to carry out its obligations under this Agreement, and other instruments. The execution and delivery of this Agreement, and other instruments and the completion of the transactions contemplated by this Agreement and other instruments have been duly authorized by all necessary corporate action on the part of each of LGEC and LGFC; | ||
(c) | Residence of Vendor. The Vendor is not a non-resident of Canada for purposes of § 116 of the Income Tax Act (Canada); | ||
(d) | Ownership of Partnership Interest. LGEC and LGFC are the sole partners in the Partnership and are the sole legal and beneficial holders of the Partnership Interest, with good and marketable title thereto, free and clear of all Liens. No Person other than the Purchaser has any right, agreement or option, or any right capable of becoming a right, agreement or option for the purchase from the Vendor of the Partnership Interest or any portion thereof; | ||
(e) | Existence of Partnership. To the Vendors Knowledge, the Partnership was formed on July 13, 1988 and the Partnership has continued to exist at all times since that date; | ||
(f) | Ownership of Shares. LGEC is the sole registered holder of the Shares, and holds the Shares as agent, bare trustee and nominee for the Partnership as principal and beneficial owner, with good and marketable title thereto, free and clear of all Liens, except as set out in Schedule G hereto. No Person other than the Purchaser has any right, agreement or option or any right capable of becoming a right, agreement or option for the purchase from LGEC of the Shares or to require the Registered Owner to allot or issue any further or other shares or any other instrument convertible or exchangeable into shares of the Registered Owner; | ||
(g) | Title to Assets. The Partnership has good and marketable title to all of the Assets which it purports to own or which are reflected as owned in the Books and Records including all property and assets reflected in the Financial Statements, |
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free and clear of all Liens, except for Permitted Liens. The Real Property is registered in the name of the Registered Owner as agent, bare trustee and nominee for the Partnership as principal and beneficial owner. | |||
(h) | Ownership of Real Property. The Registered Owner has no beneficial interest in the Real Property and has carried on no business or activity of any kind whatsoever other than holding legal title to the Real Property and other property in trust for the Vendor and dealing with the Real Property and the Employees on behalf of and as directed by the Partnership. | ||
(i) | Financial Statements. To the Vendors Knowledge, the Financial Statements, copies of which have been delivered to the Purchaser, are fair and accurate and are in accordance with the Books and Records. The Financial Statements have been prepared in accordance with GAAP. The balance sheets contained in such Financial Statements fairly and accurately present the financial condition of the Partnership as of their respective dates and the statements of earnings and retained earnings contained in the Financial Statements fairly and accurately present the results of operations for the periods indicated; | ||
(j) | Material Contracts. Schedule H lists all of the Material Contracts. To the Vendors Knowledge, each Material Contract is in full force and effect and the Partnership is entitled to the full benefit and advantage of each Material Contract in accordance with its terms. The Partnership is not in default under any Material Contract and, to the Vendors Knowledge, no other party thereto is in default under any Material Contract and there has not occurred any event which, with the lapse of time or giving of notice or both would constitute a default under any Material Contract by the Partnership or any other party thereto. Neither the Vendor nor the Partnership has received any notice of a default under any Material Contract and there is no dispute between the Partnership and any other party in respect of any Material Contract. Except as disclosed in Schedule H, none of the Material Contracts has been assigned or otherwise transferred by the Partnership in favour of any Person; | ||
(k) | Compliance with Applicable Law. To the Vendors Knowledge, the Vendor and the Partnership are in compliance with all Applicable Law; | ||
(l) | Licences and Permits. Schedule I lists all the Licences and Permits of the Partnership. To the Vendors Knowledge, the Business is being carried on in compliance with all such Licences and Permits; | ||
(m) | Undisclosed Liabilities/Guarantees. The Partnership does not have any Liabilities which are not disclosed in the Financial Statements or disclosed herein, other than Liabilities incurred in the usual and ordinary course of the Business; | ||
(n) | Consents and Approvals and Notices. Except for the Consents and Approvals and Notices listed in Schedule J, no Consent and Approval or Notice of or to any Person is required in connection with the execution and delivery of this |
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Agreement and the completion of the transactions contemplated by this Agreement or to permit the Partnership to carry on the Business after the Closing as the Business is currently carried on by the Partnership; | |||
(o) | Absence of Conflicting Agreements. The execution, delivery and performance of this Agreement by the Vendor and the completion (with any required Consents and Approvals and Notices) of the transactions contemplated by this Agreement do not and shall not result in or constitute any of the following: |
(a) | a default, breach or violation or an event that, with notice or lapse of time or both, would be a default, breach or violation of any of the terms, conditions or provisions of the constating documents of the Vendor; | ||
(b) | an event which, pursuant to the terms of any Contract (other than any Contract containing any provision entitling the party or parties thereto other than the Partnership to consent to a change of control of the Partnership) or any of the Licences and Permits, causes any right or interest of the Partnership to come to an end or be amended in any way that is detrimental to the Business or entitles any other Person to terminate or amend any such right or interest; | ||
(c) | the creation or imposition of any Lien on any Asset; or | ||
(d) | the violation of any Applicable Law or order of a court or Regulatory Body; |
(p) | Litigation. To the Vendors Knowledge, and except as disclosed in Schedule K, there is no Litigation by or against the Partnership or the Registered Owner or affecting the Business, the Assets or the operations or capital of the Partnership or the Registered Owner or the transactions contemplated by this Agreement, which adversely affects the Business or the Assets in a material way; | ||
(q) | Insurance. Particulars of the policies of insurance maintained by or in respect of the Partnership at the date of this Agreement (including the insurer, the amount of coverage, the type of insurance, the policy number, the deductible and the premiums payable) are set out in Schedule L. All such policies are in full force and effect and neither the Vendor nor the Partnership is in default, whether as to the payment of premiums or otherwise, under the terms of such policies or has failed to give any notice or present any claim in a timely fashion under any such insurance policy; | ||
(r) | Tax Filings. The Partnership has prepared and filed with all appropriate Regulatory Bodies all required Tax Returns for all fiscal periods ending prior to the date hereof and shall continue to do so, in a timely manner, in respect of any fiscal period ending on or before the Closing Date and any fiscal period commencing before and ending after the Closing Date. All such Tax Returns are fair and accurate in all material respects, and no material fact has been omitted therefrom. No extension of time in which to file any such Tax Returns is in effect; |
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(s) | Taxes Paid. The Partnership has paid in full all Taxes required to be paid on or prior to the date hereof and all late filing penalties and interest or the Partnership has made adequate provision in the Financial Statements for the payment of all Taxes of the Partnership and all late filing penalties and interest in respect of all fiscal periods ending on or before the Closing Date or which commence before and end after the Closing Date; | ||
(t) | Undepreciated Capital Cost. The undepreciated capital cost of the depreciable property owned by the Partnership other than the Excluded Assets is not less than $16,000,000; | ||
(u) | Withholdings and Remittances. The Partnership has collected all Taxes required by Applicable Law to be collected from third parties and the Registered Owner has withheld from each payment made to any of its Employees or former employees, officers and directors, and to all Persons who are non-residents of Canada for the purposes of the Income Tax Act (Canada) all amounts required by Applicable Law to be withheld, and furthermore, each of them has remitted such withheld amounts within the prescribed periods to the appropriate Regulatory Body. The Registered Owner has remitted all Canada Pension Plan contributions, provincial pension plan contributions, employment insurance premiums, employer health taxes and other Taxes payable by it in respect of its Employees and has remitted such amounts to the proper Regulatory Body within the time required under the Applicable Law; | ||
(v) | Indebtedness. Except for the payment of salaries and reimbursements for out-of-pocket expenses in the ordinary and usual course (which will be adjusted between the parties on Closing), neither LGEC nor LGFC (nor any director, officer, shareholder or employee thereof) is indebted to the Partnership and the Partnership is not indebted to either LGEC or LGFC (or any director, officer, shareholder of employee thereof); | ||
(w) | Incorporation of Registered Owner. The Registered Owner is a body corporate duly incorporated and validly existing under the laws of British Columbia, has never been dissolved and is in good standing with the Office of the Registrar of Companies for British Columbia with respect to the filing of annual reports; | ||
(x) | Power, Capacity and Authority of Registered Owner. The Registered Owner has the corporate power, capacity and authority to hold legal title to the Real Property in trust for the Partnership; | ||
(y) | Minute Book of Registered Owner. The minute book of the Registered Owner has been maintained as required by all governing laws, is accurate, complete and current and contains complete and accurate minutes of all meetings of and all resolutions passed by the directors and shareholders of the Registered Owner since the date of the incorporation of the Registered Owner; |
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(z) | Obligations. Except as set out in Schedule M hereto, neither the Registered Owner nor the Real Property is subject to any guarantee, indemnity or other contingent or indirect obligation with respect to the obligation of any other Person, other than any Affiliate of the Registered Owner and any such guarantee, indemnity or other contingent or indirect obligation shall be released on or before the Closing Date. | ||
(aa) | Liabilities. As of the Closing Date, neither the Partnership nor the Registered Owner will have any direct or indirect material Liabilities of any kind whatsoever, including, without limitation, in respect of claims by officers or directors of the Registered Owner or the Vendor, whether or not accrued, and whether or not known or, to the Vendors Knowledge, unknown, determined or undetermined, contingent or otherwise, in respect of which the Partnership or the Registered Owner is or may be liable on or after the Closing Date; | ||
(bb) | Services. To the Vendors Knowledge, the Vendor has not received any notice or advice of any proposed local improvement charges or special levies or assessments with respect to the property taxes or utilities payable in connection with off-site services, utilities or similar services in connection with the Real Property; | ||
(cc) | Encroachments. To the Vendors Knowledge, there is no improvement on any land adjoining the Real Property which encroaches upon the Real Property and no improvement on the Real Property encroaches on any adjoining land; | ||
(dd) | Land Use. To the Vendors Knowledge, the Real Property and the use thereof do not contravene any applicable zoning or building bylaw, covenant, registered or unregistered restriction, land use contract, law, ordinance or regulation (whether relating to fire, safety, the environment, the building standards, health standards or otherwise) of any governmental authority, all of which permit the present use and occupation of the Real Property, and the Vendor has not received and has no Knowledge of any notice or request from any government authority or official, insurance company or board of fire underwriters that the Real Property is subject to any outstanding municipal work orders, fire upgrading orders, health orders or other notices of deficiencies in respect of the Real Property; | ||
(ee) | Expropriation. The Vendor has received no notice of and has no knowledge of any proposed expropriation of the Real Property or any part thereof; | ||
(ff) | Environmental Laws. Except as disclosed in the Review Materials, the Vendor has received no written notice of non-compliance, and does not know, or have reasonable grounds to know, of any facts which could give rise to any notice of non-compliance with respect to any Environmental Laws, orders, plans, remediation plans, approvals, permits or conditions of their issuance; |
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(gg) | Hazardous Substances. To the Vendors Knowledge, the Real Property does not contain any Hazardous Substance and there are no underground storage tanks located thereon, except as disclosed in the Review Materials; | ||
(hh) | Material Effect. To the Vendors Knowledge, the Vendor has not failed to disclose or make available to the Purchaser on a timely basis any information concerning the Assets which would have a material effect on a reasonably prudent institutional purchasers decision to purchase the Assets; | ||
(ii) | Employment Matters. |
(a) | The Registered Owner does not have any full-time or part-time Employees, other than the Employees listed in Schedule E. | ||
(b) | None of the Employees is on short-term disability, long-term disability or any other approved or statutory leave of absence. | ||
(c) | Except as set out in Schedule N hereto, neither the Registered Owner nor the Partnership is bound by or a party to: |
(i) | any union or collective bargaining agreement; or | ||
(ii) | any written or unwritten pension plan or other benefit plan, program or arrangement maintained, contributed to or provided by the Partnership or the Registered Owner for the benefit of any of the Employees or for the benefit of any of the dependants or beneficiaries of any of the Employees. |
(d) | No trade union, council of trade unions, employee bargaining agency or affiliated bargaining agent: |
(i) | holds bargaining rights with respect to any of the Employees by way of certification, interim certification, voluntary recognition, designation or successor rights; or | ||
(ii) | has applied to be certified as the bargaining agent of any of the Employees. |
(jj) | Absence of Certain Changes or Events. Since March 31, 2005, the Partnership has not: |
(a) | suffered any Material Adverse Effect including any damage to the Improvements that would cost in excess of $200,000 to repair; | ||
(b) | sold, leased, transferred or otherwise disposed of any of the Assets reflected on the balance sheet forming part of the Financial Statements, except in the usual and ordinary course of business; |
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(c) | changed any accounting or costing systems or methods in any material respect; | ||
(d) | granted, or agreed to grant, any bonus, increased, or agreed to increase, any remuneration or compensation (other than for normal merit and cost of living increases consistent with past practice) or made, or agreed to make, any loans or advances to any director, officer or Employee, except as otherwise disclosed to the Purchaser; | ||
(e) | granted a Lien on any of the Assets, except in the ordinary course of the Business and in amounts which, individually and in the aggregate are not material to the financial condition of the Partnership or operation of the Business; | ||
(f) | entered into any transaction out of the usual and ordinary course of business; | ||
(g) | cancelled or amended any policy of insurance; or | ||
(h) | agreed to do any of the foregoing; |
(kk) | Enforceability of Obligations. This Agreement constitutes a legal, valid and binding obligation of the Vendor enforceable against the Vendor in accordance with its terms subject, however, to limitations on enforcement imposed by bankruptcy, insolvency, reorganization or other laws affecting the enforcement of creditors rights generally and to the extent that equitable remedies such as specific performance and injunctions are only available in the discretion of the court from which they are sought. |
(a) | Incorporation and Power. Each entity comprising the Purchaser is a corporation duly incorporated and validly subsisting under the laws of the jurisdiction of its incorporation; | ||
(b) | Due Authorization. The Purchaser has the corporate power, authority and capacity to enter into this Agreement and all other agreements and instruments to be executed by it as contemplated by this Agreement and to carry out its obligations under this Agreement and such other agreements and instruments. The execution and delivery of this Agreement and such other agreements and instruments and the completion of the transactions contemplated by this Agreement and such other agreements and instruments have been duly authorized by all necessary corporate action on the part of the Purchaser; |
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(c) | Enforceability of Obligations. This Agreement constitutes a legal, valid and binding obligation of the Purchaser enforceable against the Purchaser in accordance with its terms subject, however, to limitations on enforcement imposed by bankruptcy, insolvency, reorganization or other laws affecting the enforcement of creditors rights generally and to the extent that equitable remedies such as specific performance and injunctions are only available in the discretion of the court from which they are sought; and | ||
(d) | GST Registration. The Purchaser is or shall be by the Closing Date a GST registrant. | ||
(e) | Review Materials. The Purchaser has received the Review Materials. |
(a) | Except as otherwise expressly provided for in this § 5.3, the representations and warranties of the Vendor contained in § 5.1 shall survive the Closing and, notwithstanding the Closing or any investigation made by or on behalf of the Purchaser, shall continue in full force and effect for the benefit of the Purchaser for a period of one (1) year subsequent to the Closing Date. | ||
(b) | The representations and warranties of the Vendor contained in § 5.1 (r), § 5.1 (s) and § 5.1 (u) shall survive the Closing and, notwithstanding the Closing or any investigation made by or on behalf of the Purchaser, shall continue in full force and effect for the benefit of the Purchaser until the earlier of: |
(i) | the sixth anniversary of the Closing Date; and | ||
(ii) | the expiration of the last limitation period under any Applicable Law respecting Taxes subsequent to the expiration of which an assessment, reassessment or other form of recognized document assessing liability for any Tax for any fiscal period of the Partnership ending on or prior to the Closing Date or beginning before and ending after the Closing Date cannot be issued. |
(c) | The representations and warranties of the Purchaser contained in § 5.2 shall survive the Closing and, notwithstanding the Closing or any investigation made by or on behalf of the Vendor, shall continue in full force and effect for the benefit of the Vendor for a period of one (1) year subsequent to the Closing Date. |
(a) | Employees. The Purchaser shall cause the Registered Owner to offer employment to all of the Employees to continue as of the Closing Date on terms and conditions that are no less favourable, in the aggregate, than the terms and conditions which applied to such Employees prior to the Closing Date; and |
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(b) | Lions Gate Studios. Subject to § 6.9, the Purchaser shall not refer to the Real Property or the Business as Lions Gate Studios after the Closing Date and shall, after the Closing, remove all signage in or on the Real Property bearing the words Lions Gate Studios or any combination thereof. |
CLOSING ARRANGEMENTS
(a) | a transfer of the Partnership Interest, duly executed by the Vendor; | ||
(b) | a transfer of the Shares, duly executed by LGEC; | ||
(c) | the Partnership books of the Partnership; | ||
(d) | a certificate of the President or other senior officer of LGEC or LGFC dated as of the Closing Date certifying that each of the warranties and representations of the Vendor set out herein is true and accurate on the Closing Date in all material respects; | ||
(e) | evidence of those Consents and Approvals that have been obtained on or prior to the Closing Date; | ||
(f) | resolutions of the directors of LGEC and LGFC authorizing the transfer of the Partnership Interest to the Purchaser; |
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(g) | resolutions of LGEC and LGFC, as partners of the Partnership, authorizing the transfer of the Partnership Interest to the Purchaser and any consents or waivers required under the Partnership Agreement; | ||
(h) | resolutions of the directors of LGEC authorizing the transfer of the Shares to the Purchaser; | ||
(i) | resolutions of the directors of the Registered Owner authorizing the transfer of the Shares to the Purchaser and the issuance of a new share certificate in the name of the Purchaser or as otherwise directed by the Purchaser; | ||
(j) | resignations of all of the directors and officers of the Registered Owner; | ||
(k) | full releases from each of the current directors and officers of the Registered Owner; | ||
(l) | resolutions of the directors of the Registered Owner approving the change of the registered and records office of the Registered Owner to an address provided by the Purchaser; | ||
(m) | a duly executed Notice of Change of Registered and Records Office changing the address of the registered and records office of the Registered Owner to the address provided by the Purchaser; | ||
(n) | confirmation of a change of name of the Registered Owner to a numbered company name or such other name as provided by the Purchaser to LGEC; | ||
(o) | the share certificates representing the Shares duly endorsed for transfer; | ||
(p) | the Statement of Adjustments contemplated in § 2.7; | ||
(q) | an adhesion instrument or instrument among the parties hereto confirming that the Partnership is not dissolved or terminated by virtue of the withdrawal and retirement of the Vendor and the admission of the Purchaser; | ||
(r) | the licence referred to in § 6.9; | ||
(s) | an opinion of the Vendors Solicitors regarding the due execution and delivery of the closing documents; and | ||
(t) | all such other assurances, consents, agreements, documents and instruments as may be reasonably required by the Purchaser to complete the transactions provided for in this Agreement. |
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(a) | a certificate of the President or other senior officer of the Purchaser dated as of the Closing Date certifying that each of the warranties and representations of the Purchaser set out herein is true and accurate on the Closing Date in all material respects; | ||
(b) | an opinion of Purchasers Solicitors regarding the due execution and delivery of the closing documents; | ||
(c) | the balance of the Purchase Price as contemplated in § 2.4 (c); | ||
(d) | copy of Change of Partnership evidencing the Purchaser as the holder of the Partnership Interest; | ||
(e) | certificate as to the Purchasers GST registered status; | ||
(f) | indemnification sufficient to relieve the Vendor from any obligation to collect and remit GST with respect to the transfer of the Real Property to the Purchaser; and | ||
(g) | all such other assurances, consents, agreements, documents and instruments as may be reasonably required by the Vendor to complete the transactions provided for in this Agreement. |
(a) | The Vendor shall be responsible for the costs of the Vendors Solicitors in respect of the transactions contemplated in this Agreement. | ||
(b) | The Purchaser shall be responsible for the costs of the Purchasers Solicitors in respect of the transactions contemplated in this Agreement. |
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(c) | The Purchaser shall be responsible for and pay any land transfer taxes payable upon the transfer of the Real Property, all registration fees payable in respect of registration by it of any documents on Closing and all federal and provincial sales and other taxes payable by the Purchaser upon or in connection with the conveyance or transfer of the Partnership Interest and the Assets. | ||
(d) | The Vendor shall be responsible for real estate commissions which are payable to the Agent in connection with the Closing. |
INDEMNIFICATION
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(a) | any material inaccuracy in or material breach of any representation or warranty of the Purchaser contained in § 5.2; | ||
(b) | any breach or non-fulfilment of any covenant or agreement on the part of the Purchaser under this Agreement by the Purchaser or any other certificate or instrument executed and delivered by the Purchaser pursuant to this Agreement; and | ||
(c) | any activity of the Purchaser and its employees, consultants, contractors, advisors or other agents relating to the Real Property, including without limitation, mechanics liens, damage to the Real Property, injury to persons or property resulting from such activities in connection therewith, but not if and to the extent due to the gross negligence or wilful misconduct of any of the Indemnified Parties. |
(a) | any material inaccuracy in or material breach of any representation or warranty of the Vendor contained in § 5.1; | ||
(b) | any breach or non-fulfilment of any covenant or agreement on the part of the Vendor under this Agreement by the Vendor or any other certificate or instrument executed and delivered by the Vendor pursuant to this Agreement; and | ||
(c) | any activities of the Vendor, or its agents, employees or contractors on the Real Property up to the Closing Date. |
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(a) | irrevocably acknowledges in writing complete responsibility for its share of the Third Party Claim, and agrees to indemnify the Indemnified Party in respect of, the Third Party Claim; and | ||
(b) | furnishes evidence to the Indemnified Party which is satisfactory to the Indemnified Party of its financial ability to indemnify the Indemnified Party; |
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GENERAL
(a) | Any dispute, controversy or claim arising out of or in connection with, or relating to, this Agreement, or the performance, breach, termination or validity thereof, including the arbitrability of any such dispute, controversy or claim, shall be finally settled by arbitration. Either Party may initiate arbitration by delivering a written demand for arbitration upon the other Party. The arbitration shall be conducted in accordance with the Commercial Arbitration Act (British Columbia), as amended. The arbitration shall take place in Vancouver, British Columbia. | ||
(b) | The arbitral tribunal shall, except as hereinafter provided, be composed of three arbitrators appointed as follows: |
(i) | each party shall appoint an arbitrator, and the two arbitrators so appointed shall appoint a third arbitrator who shall act as Chair of the tribunal; | ||
(ii) | if either Party fails to appoint an arbitrator within 30 days of receiving notice of the appointment of an arbitrator by the other |
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Party, then the arbitral tribunal shall be composed of one arbitrator who shall be the arbitrator appointed by the other Party; | |||
(iii) | if the two arbitrators appointed by the Parties fail to agree upon a third arbitrator within 30 days of the appointment of the second arbitrator, the third arbitrator shall be appointed by the British Columbia Supreme Court, as contemplated by the Commercial Arbitration Act (British Columbia), as amended; and | ||
(iv) | should a vacancy arise because any arbitrator dies, resigns, refuses to act, or becomes incapable of performing his or her functions, the vacancy shall be filled by the method by which that arbitrator was originally appointed. |
(c) | The arbitral award shall be in writing, stating the reasons for the award and be final and binding on the Parties with no rights of appeal. The award may include an award of costs, including reasonable legal fees and disbursements and the fees and expenses of the arbitral tribunal. Judgment upon the award may be entered by any court having jurisdiction thereof or having jurisdiction over the relevant Party or its assets. | ||
(d) | The arbitration shall be kept confidential and the existence of the proceeding and any element of it (including any pleadings, briefs or other documents submitted and exchanged, and testimony or other oral submission and any awards) shall not be disclosed beyond the arbitral tribunal, the Parties, their counsel and any Person necessary to the conduct of the proceeding, except as may be lawfully required by law relating to the arbitration or otherwise. |
(a) | if to the Vendor, to: |
2700 Colorado Avenue, Suite 200
Santa Monica, CA, U.S.A. 90404
Fax: (310)-255-3780
(b) | if to the Purchaser, to: |
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1901 Rosser Avenue, Suite 500
Burnaby, B.C., Canada, V5C-6S3
Fax: (604)-291-9120
(i) | personally delivered; | ||
(ii) | sent by telecopier or other direct written electronic means; or | ||
(iii) | sent by registered mail; or | ||
(iv) | sent by courier. |
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LIONS GATE ENTERTAINMENT CORP. | ||||
By: | /s/ Wayne Levin | |||
Name: | Wayne Levin | |||
Title: | Secretary | |||
By: | ||||
Name: | ||||
Title: | ||||
LIONS GATE FILMS CORP. | ||||
By: | /s/ Wayne Levin | |||
Name: | Wayne Levin | |||
Title: | General Counsel | |||
By: | ||||
Name: | ||||
Title: | ||||
BOSA DEVELOPMENT CORP. | ||||
By: | /s/ Dorinda Birch | |||
Name: | Dorinda Birch | |||
Title: | Secretary |
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By: | ||||
Name: | ||||
Title: | ||||
0742102 B.C. LTD. | ||||
By: | /s/ Dorina Birch | |||
Name: Title: | Dorina Birch Secretary | |||
By: | ||||
Name: | ||||
Title: |
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