FIRST AMENDMENT TO PARTNERSHIP AGREEMENT

Exhibit 3.19

 

FIRST AMENDMENT TO PARTNERSHIP AGREEMENT

 

FIRST AMENDMENT TO PARTNERSHIP AGREEMENT, dated as of November 10, 1988, by and between Star Theatres of Michigan, Inc., a Delaware corporation (“Star”), and Loeks Michigan Theatres, Inc., a Michigan corporation (“Loeks ”).

 

W I T N E S S E T H :

 

WHEREAS, the parties have entered into a Partnership Agreement dated as of August 30, 1988; and

 

WHEREAS, the parties desire to amend the Agreement as hereinafter set forth;

 

NOW, THEREFORE, in consideration of the mutual promises and covenants made herein and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

 

1. All capitalized terms used herein shall have the respective meanings set forth in the Agreement unless otherwise specifically defined herein. All references herein to Sections refer to Sections in the Agreement.

 

2. Section 18.2(b) is amended to substitute the word “Assets” for the word “Liabilities” set forth at the beginning of the second to last line of page 40.

 

3. Section 25.1 is amended by adding the following Paragraphs (f), (g) and (h):

 

(f) All Losses sustained or incurred by any Star Indemnified Party (it being understood that if the Partnership sustains or incurs any Loss, the Star Indemnified Parties collectively shall be deemed to have sustained or incurred one-half of any such Loss) arising out of the dispossession of the Partnership from the Theatre Property located at 1136 South Rochester Road, Rochester Hills, Michigan 48063 (the “Winchester Mall Theatre Property”) or increased rent required to be paid by the Partnership under a renegotiated lease of the Winchester Mall Theatre Property, in the event that Loeks fails to obtain Non-Disturbance Agreements (as hereinafter defined) with respect to that certain Lease, dated as of January 3, 1980, by and between Wind Mall Realty, Inc., predecessor in interest to Winchester Mall Associates Limited Partnership, and Winchester Mall Associates, predecessor in interest to Loeks Winchester Theatres, Inc., as amended by Amendments dated May 27, 1983, August 30, 1984, May 13, 1985, and October 28, 1988 (collectively, the “Winchester Mall Lease”). “Non-Disturbance Agreements” shall mean agreements from the holders of each of the instruments listed on

 

Schedule 25.1(f) attached hereto covering the Winchester Mall Theatre Property or any interest of the Landlord therein in substantially the form of the Subordination, Non-Disturbance and Attornment Agreement attached as Exhibit I to the Amendment to the Winchester Mall Lease dated October 28, 1988. Loeks shall not be required to obtain a Non-Disturbance Agreement from the holder of any such instrument that is now or hereafter discharged of record.

 

Notwithstanding the foregoing, the indemnity obligation of Loeks as to matters specified in this Paragraph (f) shall be limited to the following time periods and amounts:

 

(i) If the Partnership is dispossessed from the Winchester Mall Theatre Property following foreclosure by the mortgagee prior to the earlier of (x) the end of the Lease Term, (y) 5 years from the Closing Date or (z) the date upon which Loeks has obtained all Non-Disturbance Agreements, an amount equal to $4.5 million multiplied by a fraction, the numerator of which is the number of months remaining in the 9-year period after the Closing Date (calculated to the nearest month) and the denominator of which is 108. Such amount shall bear interest at the Prime Rate and shall be paid by Loeks as follows:

 

(A) Within 5 days after the date of each Partnership Distribution, Loeks shall pay to Star an installment equal to 20% of the Partnership Distribution received by Loeks; provided, however, that if a Partnership Distribution includes Net Capital Proceeds (as hereinafter defined), Loeks shall pay to Star an installment equal to 100% of the Net Capital Proceeds included in such Partnership Distribution, less any amount paid under a Deed of Direction pursuant to Section 7. 2, plus 20% of the balance of such Partnership Distribution. “Net Capital Proceeds” shall mean the gross cash receipts from sales, exchanges or other dispositions of all or part of the assets of the Partnership or from borrowings by the Partnership, less the amount paid in connection with such sales, exchanges, dispositions or borrowings, including, without limitation, brokerage commissions, other transaction costs and payment of mortgage or other indebtedness secured by the assets in question.

 

(B) Loeks shall pay to Star the balance of such amount, together with any unpaid interest, 3

 

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years after the Partnership is dispossessed from the Winchester Mall Theatre Property.

 

(ii) If the Winchester Mall Lease is renegotiated by the Partnership in order to continue in possession following a foreclosure or a threat of foreclosure by the mortgagee prior to the earlier of (x) the end of the Lease Term, (y) 5 years from the Closing Date or (z) the date upon which Loeks has obtained all Non-Disturbance Agreements, an amount, payable on an annual basis, equal to one-half of the “Excess Costs” as defined herein. The “Excess Costs” shall be determined on or before February 28 of each year for the immediately preceding lease year ending January 31 (the “Lease Year”) as follows:

 

(A) The total amount of rent, common area charges and all other charges payable to the Landlord under the Winchester Mall Lease for the Lease Year shall be computed as though the Winchester Mall Lease had never been renegotiated. This amount shall be referred to herein as the “Alternative Rent Calculation.”

 

(B) The total amount of rent, common area charges and all other charges payable to the Landlord under the Winchester Mall Lease as renegotiated for the Lease Year shall be calculated. This amount shall be referred to herein as the “Actual Paid Rent.”

 

(C) The Alternative Rent Calculation shall be subtracted from the Actual Rent Paid, resulting in the “Excess Costs” for such Lease Year.

 

Loeks shall pay to Star one-half of the Excess Costs for the Lease Year together with a statement showing the calculations as set forth herein, on or before February 28 of each year during the unexpired initial term of the Winchester Mall Lease (without giving effect to any options to extend or renew) . Notwithstanding the foregoing, the aggregate amount payable by Loeks under this subparagraph (ii) shall not exceed the amount that would have been payable under subparagraph (i) above had the Partnership been dispossessed from the Winchester Mall Theatre Property in lieu of renegotiating the Winchester Mall Lease.

 

If the Partnership receives any damages, expenses or other amounts (“Recovery”) from the Landlord under the Winchester Mall Lease or any other third party in connection with the dispossession of the Partnership from the

 

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Winchester Mall Theatre Property, the Recovery shall be (i) paid to Loeks to the extent necessary to reimburse Loeks for any payments made under this Paragraph (f) or (ii) paid to Star to reduce any amount payable by Loeks under this Paragraph (f) . Any Recovery in excess of the amounts paid to Loeks or Star under (i) or (ii) shall be for the account of the Partnership.

 

(g) All Losses sustained or incurred by any Star Indemnified Party (it being understood that if the Partnership sustains or incurs any Loss, the Star Indemnified Parties collectively shall be deemed to have sustained or incurred one-half of any such Loss) arising out of the dispossession, in whole or in part, of the Partnership from the Theatre Property located at Sears Lincoln Park Shopping Center, 1748 Dix, Lincoln Park, Michigan 48063 (the “Lincoln Park Theatre Property”), due to any violation of that certain Building Line Agreement, dated July 1, 1957, between Cecil P. Bronston, as successor co-trustee of The Supplemental Savings and Retirement Plan of Sears, Roebuck and Co. Employees, and Lincoln Park Shopping Center, recorded August 29, 1957, in Liber 13490, page 261, Wayne County Records (the “Building Line Agreement”).

 

Notwithstanding the foregoing, the indemnity obligation of Loeks as to matters specified in this Paragraph (g) shall be limited to the following time period and amount: if the Partnership is dispossessed from the Lincoln Park Theatre Property prior to the earlier of (x) the end of the Lease Term or (y) 5 years from the Closing Date, (A) $4.5 million multiplied by a fraction, the numerator of which is the number of months remaining in the 9-year period after the Closing Date (calculated to the nearest month) and the denominator of which is 108, multiplied by (B) a fraction, the numerator of which shall be the number of seats required to be eliminated from the Lincoln Park Theatre Property to cure the violation of the Building Line Agreement and the denominator of which shall be the total number of seats in the Lincoln Park Theatre Property immediately before seats were required to be eliminated from the Lincoln Park Theatre Property to cure the violation of the Building Line Agreement, plus (C) one-half of any construction or related costs incurred by the Partnership to cure the violation of the Building Line Agreement. Such amount shall bear interest at the Prime Rate, and shall be paid by Loeks as follows:

 

(i) Within 5 days after the date of each Partnership Distribution, Loeks shall pay to Star an installment equal to 20% of the Partnership Distribution received by Loeks; provided, however, that if a Partnership Distribution includes Net Capital

 

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Proceeds (as hereinafter defined), Loeks shall pay to Star an installment equal to 100% of the Net Capital Proceeds included in such Partnership Distribution, less any amount paid under a Deed of Direction pursuant to Section 7.2, plus 20% of the balance of such Partnership Distribution. “Net Capital Proceeds” shall mean the gross cash receipts from sales, exchanges or other dispositions of all or part of the assets of the Partnership or from borrowings by the Partnership, less the amount paid in connection with such sales, exchanges, dispositions or borrowings, including, without limitation, brokerage commissions, other transaction costs and payment of mortgage or other indebtedness secured by the assets in question.

 

(ii) Loeks shall pay to Star the balance of such amount, together with any unpaid interest, 3 years after the Partnership is dispossessed from the Lincoln Park Theatre Property.

 

If the Partnership receives any Recovery from the Landlord under the Lincoln Park Lease or any other third party in connection with the dispossession of the Partnership from the Lincoln Park Theatre Property, the Recovery shall be (i) paid to Loeks to the extent necessary to reimburse Loeks for any payments made under this Paragraph (g) or (ii) paid to Star to reduce any amount payable by Loeks under this Paragraph (g). Any Recovery in excess of the amounts paid to Loeks or Star under (i) or (ii) shall be for the account of the Partnership.

 

(h) All Losses sustained or incurred by any Star Indemnified Party and the Partnership arising out of or relating to the following tax liens: (i) federal tax lien in the amount of $72,062.55 against Winchester Mall Cinemas, Inc., dated April 13, 1983, recorded in Oakland County on April 21, 1983, in Liber 8360, page 316; (ii) state tax lien in the amount of $1,239.16, against Winchester Mall Cinemas, Inc., dated January 28, 1983, recorded in Oakland County on March 7, 1983, in Liber 8332, page 395; and (iii) state tax lien in the amount of $875.93 against Winchester Mall Cinemas, Inc., dated September 26, 1984, recorded in Oakland County on October 30, 1984, in Liber 8822, page 12.

 

4. Section 25.1(a)(iii) is amended by inserting the following language in the fifth line, following the word “Closing,” and before the word “except”:

 

including, without limitation, all liabilities and obligations of Loeks to Sign Craft, Inc., incurred or entered into on or before the Closing Date with respect to the construction of interior or exterior signage at

 

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the Lincoln Park Theatre Property (as hereinafter defined).

 

5. Section 25.4 is amended by inserting the following sentence after the first sentence of the paragraph:

 

Notwithstanding the foregoing, (i) claims under Section 25.1, Paragraphs (f) and (g) may be asserted within 5 years after the Closing, (ii) claims under Section 25.1, Paragraph (a)(iii) relating to signage at the Lincoln Park Theatre Property may be asserted within 5 years after the Closing, and (iii) claims under Section 25.1(h) may be asserted until the expiration of the Winchester Mall Lease.

 

6. Except as specifically provided herein, nothing contained in this First Amendment to Partnership Agreement shall be deemed to modify in any respect the terms, provisions, covenants, or conditions of the Agreement, and such terms, provisions, covenants, and conditions shall remain in full force and effect, as so modified.

 

7. This First Amendment to Partnership Agreement shall be binding upon and inure to the benefit of the parties and their respective heirs, legal representatives, permitted successors, and assigns.

 

8. This First Amendment to Partnership Agreement contains the sole and entire understanding and agreement of the parties with respect to its entire subject matter and all prior negotiations, discussions, representations, agreements, and understandings heretofore had between them with respect thereto are merged herein.

 

9. This First Amendment to Partnership Agreement may be executed in several counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

 

IN WITNESS WHEREOF, the parties have executed this First Amendment to Partnership Agreement as of the day and year first above written.

 

 

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SCHEDULE 25.1(f)

 

1. A Mortgage and Security Agreement in the amount of $7,750,000 executed by Winchester Mall Associates Limited Partnership, a New Jersey limited partnership, to Balcor Pension Investors-VI, an Illinois limited partnership, dated December 30, 1985, recorded January 24, 1986, in Liber 9256, page 161.

 

2. A Second Mortgage, Security Agreement, Assignment of Rents and Leases, and Financing Statement in the amount of $1,800,000 executed by MIG Winchester Mall Associates Limited Partnership, a Michigan limited partnership, to San Jacinto Savings Association, dated November 28, 1984, recorded December 14, 1984, in Liber 8861, page 346.

 

3. A Purchase Money Junior Mortgage in the amount of $1,000,000 executed by Winchester Mall Associates Limited Partnership, a New Jersey limited partnership, to MIG Winchester Mall Associates Limited Partnership, a Michigan limited partnership, dated December 27, 1985, recorded January 24, 1986, in Liber 9256, page 209.

 

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SECOND AMENDMENT TO PARTNERSHIP AGREEMENT

 

SECOND AMENDMENT TO PARTNERSHIP AGREEMENT, dated as of November 16, 1992, to the Partnership Agreement, dated as of August 30, 1988 and amended as of November 10, 1988, by and between Star Theatres of Michigan, Inc., a Delaware corporation (“Star”) and Loeks Michigan Theatres, Inc., a Michigan corporation (“Loeks”).

 

W I T N E S S E T H :

 

WHEREAS, the parties entered into a Partnership Agreement dated as of August 30, 1988, which was amended by the First Amendment to Partnership Agreement dated as of November 10, 1988 (the “Partnership Agreement”); and

 

WHEREAS, James Loeks (“J. Loeks”) and Barrie Loeks (“B. Loeks”), the sole shareholders of Loeks, are, simultaneously with entering into this Second Amendment to Partnership Agreement, entering into an employment agreement (the “Employment Agreement”), dated as of November 16, 1992, with Sony Pictures Entertainment Inc. (“SPE”), an affiliate of Star; and

 

WHEREAS, Loews Theatre Management Corp. (“Loews”) is the Booking Agent (as defined in the Partnership Agreement) for the Partnership (as defined in the Partnership Agreement); and

 

WHEREAS, pursuant to the Employment Agreement, J. Loeks and B. Loeks will, as Chairmen of Loews, an affiliate of both Star and SPE, be in the position to make certain business decisions affecting the Partnership, which could create a conflict of interest due to J. Loeks and/or B. Loeks ’ interests in Loeks;

 

NOW, THEREFORE, in consideration of the mutual promises and covenants made herein and in the Employment Agreement and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

 

1. All capitalized terms used herein shall have the respective meanings set forth in the Partnership Agreement unless otherwise specifically defined herein. All references herein to Sections refer to Sections in the Partnership Agreement.

 

2. J. Loeks and B. Loeks each acknowledge that while their primary obligation shall be to Loews, they shall also continue to devote such time as they deem reasonably necessary to continue to fulfill their individual obligations and the obligations of Loeks

 

under the Partnership Agreement. Star acknowledges that J. Loeks and B. Loeks ’ entering into the Employment Agreement and the performance of their obligations to Loews thereunder shall not be considered a violation of any of their obligations pursuant to the Partnership Agreement.

 

3. J. Loeks and B. Loeks each agree to use their best efforts to avoid any preferential treatment of the Partnership and/or Loeks, on the one hand, or Loews, on the other hand, to the detriment of the other, in their capacities as Chairmen of Loews and in Loews ’ capacity as Booking Agent for the Partnership.

 

4. As of the date of this Agreement, Section 16.6 shall be amended to provide that the Operating Agent shall no longer be entitled to the annual fee of $100,000.

 

5. As of the date of this Agreement, Section 17.6 shall be amended to provide that the Booking Agent shall no longer be entitled to the annual fee of $100,000.

 

6. Article 26 shall be amended to provide that the addresses for notices to Star shall be as follows:

 

“Star Theatres of Michigan, Inc.

c/o Sony Pictures Entertainment Inc.

711 Fifth Avenue

New York, Hew York 10022

Attention: President

Telecopier: 212-702-7877

 

with a copy to:

 

Sony Pictures Entertainment Inc.

Thalberg Building

10202 W. Washington Blvd.

Culver City, California 90232

Attention: General Counsel

Telecopier: 310-280-1797 ”

 

and the following telecopier numbers shall be added to the following addresses for notice to Loeks:

 

for Loeks Michigan Theatres, Inc.:

 

“Telecopier: 616-940-0046”

 

for Charles E. McCallum, Esq.:

 

“Telecopier: 616-459-2611”

 

7. Except as specifically provided herein, nothing contained in this Second Amendment to Partnership Agreement shall be deemed to modify in any respect the terms, provisions, covenants, or

 

conditions of the Agreement, and such terms, provisions, covenants and conditions shall remain in full force and effect, as so modified.

 

8. This Second Amendment to Partnership Agreement shall be binding upon and inure to the benefit of the parties and their respective heirs, legal representative, permitted successors, and assigns.

 

9. This Second Amendment to Partnership Agreement contains the sole and entire understanding and agreement of the parties with respect to its entire subject matter and all prior negotiations, discussions, representations, agreements, and understandings heretofore had between them with respect thereto are merged herein.

 

10. This Second Amendment to Partnership Agreement may be executed in several counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

 

IN WITNESS WHEREOF, the parties have executed this Second Amendment to Partnership Agreement as of the day and year first above written.

 

 

 

Agreed to as of the date first above-written:

/s/ James loeks

JAMES LOEKS

/s/ Barrie Lawson Loeks

BARRIE LAWSON LOEKS

 

SONY PICTURES ENTERTAINMENT INC.
By:		/s/ Ronald N. Jacobi
		Ronald N. Jacobi
		Senior Vice President and
		General Counsel

 

 

THIRD AMENDMENT TO PARTNERSHIP AGREEMENT

 

THIRD AMENDMENT TO PARTNERSHIP AGREEMENT, dated as of March 9, 2000, by and between STAR THEATRES OF MICHIGAN, INC., a Delaware corporation ( “Star” ), and LOEKS & LOEKS ENTERTAINMENT, INC., a Michigan corporation (f/k/a Loeks Michigan Theatres, Inc.) ( “Loeks” ).

 

W I T N E S S E T H :

 

WHEREAS, the parties entered into a Partnership Agreement of Loeks-Star Partners (“Partnership”) dated as of August 30, 1988, which was amended by the First Amendment to Partnership Agreement dated as of November 10, 1988, and the Second Amendment to Partnership Agreement dated as of November 16, 1992 (the “Partnership Agreement” ).

 

WHEREAS, the Partnership is a member of Star Southfield Center, LLC, a Michigan limited liability company (“Star Southfield”), which was a member of Southfield Restaurant Company, LLC, a Delaware limited liability company ( “Restaurant Company” );

 

WHEREAS, Ark Southfield Corp., a Delaware corporation, was formerly a member of Restaurant Company, but withdrew as a member on March 9, 2000;

 

WHEREAS, Star Southfield has distributed a portion of its membership interest in Restaurant Company to the Partnership, and Partnership has sold such interest to Loeks; and

 

WHEREAS, the Partners desire to amend the Partnership Agreement to clarify the management authority of Loeks with respect to all matters related to Restaurant Company and to provide for special allocations of Partnership income and cash flow to Loeks with respect to the Minimum Rent paid under the terms of the Lease dated September 28, 1999, between Star Southfield and Restaurant Company, as amended (the “Lease”), and the value attributable to such Minimum Rent in the event of any sale of Star Southfield;

 

NOW, THEREFORE, in consideration of the mutual promises and covenants made herein and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

 

1. All capitalized terms used herein shall have the respective meanings set forth in the Partnership Agreement and the Lease unless otherwise specifically defined herein. All references herein to Sections refer to Sections in the Partnership Agreement.

 

2. Notwithstanding anything to the contrary contained in the Partnership Agreement, the Loeks Partner shall receive the following special allocations of Partnership income and cash flow:

 

(a) an amount equal to the Minimum Rent paid by Restaurant Company to Star Southfield under the Lease multiplied by Partnership’s percentage membership interest in Star Southfield, which special allocation of cash flow shall be distributed to the Loeks Partner by the Partnership no less often than quarterly, prior to any other Partnership Distributions made under Section 14.1; and

 

(b) in the event of any sale of Partnership’s membership interest in Star Southfield or any sale of all or substantially all of the assets of Star Southfield, an amount equal to the portion of the sale proceeds received by Partnership that is attributable to the value of the Minimum Rent payable by Restaurant Company under the Lease, which special allocation of cash flow shall be distributed to the Loeks Partner within thirty (30) days after such sale proceeds are received by the Partnership

 

The parties agree and acknowledge that the Minimum Rent payable by Restaurant Company under the Lease does not include the GR Rent payable under Article VIA of the Lease. Consequently, the GR Rent shall be paid by Restaurant Company to Star Southfield, and there shall be no special allocation to either Partner with respect to the GR Rent.

 

3. Star acknowledges and agrees that the Loeks Partner and James Loeks and Barrie Loeks, through their ownership of the Loeks Partner, shall be involved in the operation and management of Restaurant Company, and that this involvement may result in actual or potential conflicts of interest. Star expressly agrees that the existence of such actual or potential conflicts of interest shall not be a basis for any claims by Star against the Loeks Partner, James Loeks or Barrie Loeks; provided, however, that Restaurant Company shall operate the restaurants in accordance with the terms of the Lease, which shall not be assigned, amended or terminated without Star’s prior written consent, which shall not be unreasonably withheld or delayed. If Star receives a written request for consent and fails to respond in writing within fourteen (14) days, Star shall be deemed to have granted its consent provided such request contains the following admonition: “If you fail to respond to this request within fourteen (14) days after receipt of this request, you shall be deemed to have granted your consent.”

 

4. Except as specifically provided herein, nothing contained in this Third Amendment to Partnership Agreement shall be deemed to modify in any respect the terms, provisions, covenants, or conditions of the Partnership Agreement, and such terms, provisions, covenants, and conditions shall remain in full force and effect, as so modified.

 

5. Article 26 of the Partnership Agreement shall be amended to provide that the addresses for notices to Star shall be as follows:

 

Star Theatres of Michigan, Inc.

c/o Loews Cineplex Entertainment Corporation

711 Fifth Avenue

New York, New York 10022

Attn: President

Telecopier: (212) 833-6375

 

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with a copy to:

 

its General Counsel at the same address

Telecopier: (212) 833-6222

 

6. This Third Amendment to Partnership Agreement shall be binding upon and inure to the benefit of the parties and their respective heirs, legal representatives, permitted successors, and assigns.

 

7. This Third Amendment to Partnership Agreement may be executed in several counterparts, each of which shall be deemed an original, but all of which together shall constitute one in the same instrument.

 

IN WITNESS WHEREOF, the parties have executed this Third Amendment to Partnership Agreement as of the day and year first above written.

 

 

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FOURTH AMENDMENT TO PARTNERSHIP AGREEMENT

 

FOURTH AMENDMENT TO PARTNERSHIP AGREEMENT ( “Fourth Amendment” ), dated as of April 2, 2002, by and between STAR THEATRES OF MICHIGAN, INC., a Delaware corporation (“ Star ”), LOEKS & LOEKS ENTERTAINMENT, INC., a Michigan corporation (f/k/a Loeks Michigan Theatres, Inc.) ( “Loeks” ), and LOEKS ACQUISITION CORP. ( “Acquisition Corp.” )

 

W I T N E S S E T H :

 

WHEREAS, Star and Loeks (or their predecessors) entered into a Partnership Agreement of Loeks-Star Partners, a Michigan general partnership (“Partnership”), dated as of August 30, 1988, which was amended by the First Amendment to Partnership Agreement dated as of November 10,1988, the Second Amendment to Partnership Agreement dated as of November 16, 1992, and the Third Amendment to Partnership Agreement dated as of March 9, 2000 (the “Third Amendment” ) (collectively, the “Partnership Agreement” ).

 

WHEREAS, pursuant to a Purchase Agreement among Acquisition Corp., Loeks, Barrie Lawson Loeks and James J. Loeks (the “Purchase Agreement” ), on the date of this Amendment Loeks has sold and transferred all of its partnership interest in the Partnership to Acquisition Corp., except the rights retained by Loeks described in this Fourth Amendment;

 

WHEREAS, the rights retained by Loeks include a 1% capital interest in the Partnership and certain management and economic rights with respect to the Partnership’s interest in Star Southfield (as defined in the Third Amendment), among other things; and

 

WHEREAS, the parties desire to amend the Partnership Agreement to delineate the interest and rights of Loeks in the Partnership.

 

NOW, THEREFORE, in consideration of the mutual promises and covenants made herein and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

 

1. Definitions. For purposes of this Fourth Amendment, the following terms shall have the meanings specified or referred to in this Section 1. All other capitalized terms used herein shall have the respective meanings set forth in the Partnership Agreement or in the text of this Fourth Amendment.

 

“Adverse Consequences” has the meaning set forth in the Purchase Agreement.

 

“Affiliate” has the meaning set forth in the Purchase Agreement.

 

“Assumed Liabilities” has the meaning set forth in the Purchase Agreement.

 

“Closing Statement” has the meaning set forth in the Purchase Agreement.

 

“Effective Date” has the meaning set forth in the Purchase Agreement.

 

“Employees” has the meaning set forth in the Purchase Agreement.

 

“Estimated Payment” has the meaning set forth in the Purchase Agreement.

 

“Loeks Management Rights” means the management and approval rights of Loeks as set forth in Section 5 of this Fourth Amendment.

 

“Management Employees” has the meaning set forth in the Purchase Agreement.

 

“Office Sublease” means the Sublease dated September 1, 2001, between Restaurant Company, as sublandlord, and Loeks, as subtenant, for office space located within the premises described in the Restaurant Lease, the subtenant’s interest in which has been assigned to and assumed by the Partnership under the Purchase Agreement.

 

“Post Closing Income Statement” has the meaning set forth in the Purchase Agreement

 

“Restaurant Company” means Star Southfield Restaurant Company, LLC, a Delaware limited liability company.

 

“Restaurant Lease” means the Lease dated as of September 28, 1999, between Star Southfield, as landlord, and Restaurant Company, as tenant, as amended by a First Amendment to Lease dated as of March 9, 2000, and a Second Amendment to Lease dated December 3, 2001, for certain premises located in Southfield, Michigan.

 

“Retained 1% Interest” means a 1% interest in the capital of the Partnership, without (a) any other interest in income, gains, profits or losses, (b) any right to receive distributions, other than a distribution upon liquidation that is limited to a 1% interest in the capital of the Partnership, (c) any right to vote, consent or participate in the management of the Partnership, and (d) any other rights under the Michigan Uniform Partnership Act.

 

“Second Closing” has the meaning set forth in the Purchase Agreement.

 

“Security Employees” has the meaning set forth in the Purchase Agreement.

 

“Shareholders” has the meaning set forth in the Purchase Agreement.

 

“Star Southfield” means Star Southfield Center, L.L.C., a Michigan limited liability company.

 

“Star Southfield Interest” means the interest in the Partnership consisting of Loeks’ right to receive the special allocations to Loeks set forth in Section 3 of this Fourth Amendment.

 

“Star Southfield Receivable” means the principal balance of, and accrued interest on, all amounts owed to the Partnership by Star Southfield as of the Effective Date, as reflected in the Company’s balance sheet as of the Effective Date, plus additional interest accrued on such principal balance from the Effective Date through the date of Star Southfield’s payment of such principal balance to the Partnership.

 

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2. Interests Retained by Loeks. Subject to the terms of the Purchase Agreement, on the date of this Fourth Amendment Acquisition Corp. shall succeed to all of Loeks’ rights, interests, liabilities, and obligations as a Partner under the Partnership Agreement, except for (a) the Retained 1% Interest, (b) the Star Southfield Interest, (c) the Loeks Management Rights, (d) Loeks’ other rights and obligations set forth in this Fourth Amendment and (e) the indemnification rights provided for under the Partnership Agreement for the actions or omissions of Loeks as Operating Agent.

 

3. Special Allocations with Respect to Star Southfield Interest. Notwithstanding anything to the contrary contained in the Partnership Agreement, Loeks and Star shall each receive, as a special allocation, 50% of all rights, interests, liabilities and obligations related to the Partnership’s interest in Star Southfield, including, without limitation, (a) 50% of all income, gains, profits, and losses allocated to the Partnership by Star Southfield, (b) 50% of the net proceeds received by the Partnership in connection with any sale or other disposition of the Partnership’s interest in Star Southfield, (c) 50% of all distributions made to the Partnership by Star Southfield, including, without limitation distributions made in connection with any sale or other disposition of the assets of Star Southfield or the liquidation of Star Southfield, and (d) 50% of all Partnership “excess nonrecourse liabilities,” as that term is defined by Treas. Reg. Section 1.752-3(a)(3), but solely to the extent such excess nonrecourse liabilities relate to Star Southfield liabilities and only for the purpose of determining Loeks’ share of Partnership liabilities for federal income tax purposes under Section 752 of the Code. Notwithstanding anything to the contrary contained in the Partnership Agreement, Loeks shall also receive the special allocations with respect to Star Southfield, Restaurant Company, and the Lease provided for in Section 2 of the Third Amendment, which special allocations shall be in addition to the 50% allocation described in the previous sentence. Loeks and Star acknowledge that any special allocation to which they are entitled upon any sale or other disposition of the Partnership’s interest in Star Southfield or any sale of all or substantially all the assets of Star Southfield shall only be made after any required satisfaction of indebtedness associated with such assets or interests.

 

4. Operating Agent. Subject to the terms of the Purchase Agreement, Loeks shall continue to be the Operating Agent of the Partnership, with all of the rights, powers, duties and obligations set forth in Article 16 of the Partnership Agreement, through June 30, 2002. Effective on July 1, 2002, Star shall become the Operating Agent and shall succeed to, assume and perform all of such rights, powers, duties and obligations, except as otherwise described in this Fourth Amendment.

 

5. Loeks Management Rights. Notwithstanding anything to the contrary contained in the Third Amendment, until the Second Closing Loeks shall have the sole discretion and exclusive authority to take any and all actions on behalf of the Partnership with respect to Restaurant Company, the Restaurant Lease and the premises covered by the Restaurant Lease, including, without limitation, the right to enter into agreements and amendments on behalf of the Partnership or Star Southfield with respect thereto, without any consent from Star or Acquisition Corp. Notwithstanding the foregoing, Loeks shall not amend Section 5.01 of the Principal Business Terms of the Restaurant Lease or Section 5.01 (b) of the Restaurant Lease or enter into any new lease or occupancy agreement with respect to the premises covered by the Restaurant Lease that does not contain provisions the same as Section 5.01 of the Principal Business Terms

 

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of the Restaurant Lease and Section 5.01(b) of the Restaurant Lease without the prior written consent of Star and Acquisition Corp., and Loeks shall not enter into any agreement or take any action on behalf of the Partnership with respect to Restaurant Company, the Restaurant Lease or the premises covered by the Restaurant Lease, without first obtaining any and all consents required under the mortgage loan to Star Southfield. Neither Star nor Acquisition Corp. shall enter into any agreement or take any action on behalf of the Partnership with respect to the sale or other disposition of the Partnership’s interest in Star Southfield, or the sale or other disposition of any substantial portion of the assets of Star Southfield, without the prior written consent of Loeks.

 

6. Conflicts. Star and Acquisition Corp acknowledge and agree that Loeks and James Loeks and Barrie Loeks, through their ownership of Loeks, are involved in the ownership, operation and management of Restaurant Company, and that this involvement may result in actual or potential conflicts of interest. Star and Acquisition Corp. expressly agree that the existence of such actual or potential conflicts of interest shall not be a basis for any claims by Star or Acquisition Corp. against Loeks, James Loeks or Barrie Loeks.

 

7. Auburn Hills Property Tax Appeal. The Partnership shall pay to Loeks 50% of any refunds, interest and other amounts recovered by the Partnership (to the extent such amounts are not reflected in any of (i) the balance sheet of the Company delivered in connection with the Estimated Payment, (ii) the Closing Statement, or (iii) the Post Closing Income Statement) as a result of property tax appeals for any tax year beginning prior to the date hereof with respect to the Partnership’s property in Auburn Hills, Michigan, net of any expenses (including legal fees) incurred by the Partnership to pursue such appeals or to otherwise obtain such refunds, interest and other amounts. This Section 7 shall apply to both appeals by the Partnership with respect to its own property and appeals by the owner of the surrounding property at Great Lakes Crossings Mall to the extent that the latter appeals result in a refund, interest or other recovery by the Partnership for any tax year beginning prior to the date hereof. Any refund, interest or other recovery attributable to the tax year that includes the date hereof shall be prorated on a calendar year basis, and Loeks shall be entitled to 50% of any refund, interest and other amounts recovered that are attributable to the portion of the tax year through the date hereof, net of expenses as provided above. The obligations of the Partnership to Loeks under this Section 7 shall survive any transfer or termination of the Retained 1% Interest, the Star Southfield Interest, or the Loeks Management Rights.

 

8. Star Southfield Receivable. The Partnership shall pay Loeks 50% of the amounts collected on account of the Star Southfield Receivable as amounts are received by the Partnership in payment of the Star Southfield Receivable. Within five business days after the Partnership’s collection of any portion of the Star Southfield Receivable, 50% of the amount collected shall be paid by the Partnership to Loeks. The obligations of the Partnership to Loeks under this Section 8 shall survive any transfer or termination of the Retained 1% Interest, the Star Southfield Interest, or the Loeks Management Rights.

 

9. Severance. The Partnership shall pay severance in accordance with Section 4.4(d) of the Purchase Agreement to those Transferred Employees whose employment with the Partnership is terminated by the Partnership.

 

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10. Assumed Liabilities. The Partnership shall assume and pay, perform and discharge, when due, the Assumed Liabilities. The obligations of the Partnership under this Section 10 shall survive any transfer or termination of the Retained 1% Interest, the Star Southfield Interest, or the Loeks Management Rights.

 

11. Transfer of Star Southfield Membership Interest. At the Second Closing, provided that at the time of the Second Closing the Partnership still owns its membership interest in Star Southfield, and subject to the condition set forth in Section 12 of this Fourth Amendment:

 

(a) The Partnership shall assign, pursuant to the form of Assignment attached as Exhibit A hereto (the “Star Southfield Interest Assignment”), the Partnership’s membership interest in Star Southfield to Southfield Entertainment II, LLC, a Michigan limited liability company (“ SE II ”), of which Loeks and Star shall each own a 50% membership interest pursuant to the Operating Agreement in the form attached as Exhibit B hereto (the “SE II Operating Agreement” );

 

(b) Loeks and Star shall each execute the SE II Operating Agreement; and

 

(c) The parties shall use their reasonable efforts to cause Millennium Partners L.L.C. (“Millennium”) and SE II to amend Star Southfield’s Operating Agreement by executing the form of amendment attached as Exhibit C hereto (the “Star Southfield Amendment” ).

 

Loeks shall continue to be a Partner with respect to the Star Southfield Interest and the Loeks Management Rights until the Partnership assigns its membership interest in Star Southfield to SE II as provided in (a) above, and the parties fulfill their obligations under (b) above. Thereafter, the Star Southfield Interest and the Loeks Management Rights shall terminate. Loeks shall cease to be a Partner upon the later to occur of (a) the Second Closing and (b) the termination of the Star Southfield Interest and the Loeks Management Rights in accordance with the preceding sentence. Loeks shall also cease to be a Partner, and the Star Southfield Interest and the Loeks Management Rights shall terminate, upon the later to occur of (a) the Second Closing and (b) (i) the sale or other disposition by the Partnership of its interest in Star Southfield or the sale or other disposition by Star Southfield of its assets and (ii) fulfillment by the Partnership of all its obligations under Section 3 of this Fourth Amendment with respect to all net proceeds and distributions received by the Partnership in connection with any such sale or disposition.

 

12. Condition to Transfer. The Obligations of the Partners and the Partnership with respect to the transfer of the Partnership’s membership interest in Star Southfield to SE II shall be subject to satisfaction of the condition that all consents, approvals, and authorizations of third parties required to consummate such transfer (including any consent required from Star Southfield’s mortgage lender or from Millennium) must have been obtained, other than any consents, approvals, or authorizations the failure of which to obtain would not reasonably be expected to have a material adverse effect on such transfer or on the Partners, the Partnership, or Star Southfield.

 

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13. Indemnification. The Partnership shall indemnify and hold Loeks and Shareholders harmless against all Adverse Consequences to Loeks and Shareholders arising from or related to (a) any of the Assumed Liabilities, (b) Loeks’ continued ownership of the Retained 1% Interest as described in this Fourth Amendment (other than any Adverse Consequences resulting from the Partnership’s continuing membership interest in Star Southfield), and (c) the enforcement of indemnification rights of Loeks and Shareholders under this Section 13. If Loeks or a Shareholder makes a claim for indemnification that is determined by an arbitration panel or court of competent jurisdiction to be without reasonable basis in law or fact, Loeks will bear and promptly reimburse Acquisition Corp. and the Partnership for all costs and expenses (including court costs and reasonable legal and accounting fees) incurred by Acquisition Corp. or the Partnership in investigating and defending against the claim.

 

14. Other Partnership Obligations. Under the Purchase Agreement Acquisition Corp. is obligated to cause the Partnership to take certain actions and fulfill certain obligations. The Partnership hereby agrees to take all such actions and to fulfill such obligations in accordance with the terms of the Purchase Agreement.

 

15. Office Sublease. The Partnership acknowledges that the Office Sublease shall terminate upon the termination of the Restaurant Lease, and the Partnership hereby releases Loeks and Restaurant Company from any Adverse Consequence to the Partnership related to any such termination. Restaurant Company shall be a third party beneficiary of this Fourth Amendment only for purposes of such termination and release.

 

16. Partnership Agreement Remains in Full Force and Effect. Except as specifically provided herein, nothing contained in this Fourth Amendment shall be deemed to modify in any respect the terms, provisions, covenants, or conditions of the Partnership Agreement, and such terms, provisions, covenants, and conditions shall remain in full force and effect, as so modified.

 

17. Successors and Assigns. This Fourth Amendment shall be binding upon and inure to the benefit of the parties and their respective heirs, legal representatives, permitted successors, and assigns.

 

18. Counterparts. This Fourth Amendment may be executed in several counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

 

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19. Amendment to Partnership Agreement. Star and Acquisition Corp. may amend the Partnership Agreement without obtaining the consent of Loeks, except that they may not amend, terminate, or otherwise modify the Partnership Agreement so as to adversely affect, in any way, the interest of Loeks, without the prior written consent of Loeks.

 

IN WITNESS WHEREOF, the parties have executed this Fourth Amendment to Partnership Agreement as of the day and year first above written.

 

 

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PARTNERSHIP AGREEMENT

 

OF

 

LOEKS-STAR PARTNERS

 

Dated: As of August 30, 1988

 

 

TABLE OF CONTENTS

 

 

(i)

 

(ii)

 

(iii)

 

(iv)

 

(v)

TABLE OF EXHIBITS AND SCHEDULES

 

Exhibits

 

 

Schedules *

 

 

*	To be delivered prior to Closing.

 

(vi)

8609w

 

PARTNERSHIP AGREEMENT

 

OF

 

LOEKS-STAR PARTNERS

 

PARTNERSHIP AGREEMENT, dated as of August 30, 1988, by and among Star Theatres of Michigan, Inc., a Delaware corporation (“Star”), and Loeks Michigan Theatres, Inc., a Michigan corporation (“Loeks”).

 

NOW, THEREFORE, the parties hereto hereby agree as follows:

 

ARTICLE 1

 

DEFINITIONS

 

1.1. The following terms shall have the meanings assigned to them below. Certain terms are defined elsewhere in this Agreement.

 

“ Affiliate ” – With reference to a specified Person, any Person that directly or indirectly through one or more intermediaries controls or is controlled by or is under common control with the specified Person; provided, that Jack Loeks Theatres, Inc. shall not be deemed to be an Affiliate of Loeks under this Agreement.

 

“ Agreement ” – This Partnership Agreement, as it may be amended from time to time.

 

“ Annual Average Cash Flow ” – The sum of (a) in the case of any Theatre Property (as defined in Section 4.1) owned or leased (as lessee) by the Partnership which as of the Applicable Date has been in operation for at least 24 months, the Cash Flow of such Theatre Property for the 24 months ended on the Applicable Date, divided by two; plus (b) in the case of any Theatre Property which as of the Applicable Date has been in operation for at least 12 months but less than 24 months, the Cash Flow for the number of months as such Theatre Property has been in operation, divided by such number of months, and multiplied by 12; plus (c) any interest paid or payable for

 

the 12 months prior to the Applicable Date by the Star Partner pursuant to Section 6.1 hereof; plus (d) any management fees paid or payable to the Partnership for the 12 months ended prior to the Applicable Date pursuant to Section 19.1(a)(5) or 19.2(d) below.

 

“ Applicable Date ” – The last day of the month ending immediately prior to the date on which an event occurs which gives rise to the determination of Annual Average Cash Flow.

 

“ Bankrupt ”; “ Bankruptcy ” – A Partner shall be deemed “Bankrupt” and a “Bankruptcy” shall be deemed to have occurred with respect to such Partner if it or any entity which is a “Parent” (as hereinafter defined) of such Partner shall (i) make a general assignment for the benefit of its creditors, (ii) generally not pay its debts as they become due, (iii) admit in writing its inability to pay its debts as they mature, (iv) commence any case, proceeding or other action seeking reorganization, arrangement, adjustment, liquidation, dissolution or composition of it or its debts under any law relating to bankruptcy, insolvency or relief of debtors; or, if any case, proceeding or other action against any such Partner or Parent of such Partner shall be commenced seeking to have an order for relief entered against it as debtor, or seeking reorganization, arrangement, adjustment, liquidation, dissolution or composition of it or its debts under any law relating to bankruptcy, insolvency or relief of debtors, or seeking appointment of a receiver, trustee, custodian or other similar official for it or for all or any substantial part of its property, and such case, proceeding or other action referred to in this clause (iv) remains undismissed for a period of 60 days. A “Parent” of a Partner shall mean (A) in the case of any Partner, (a) any entity which owns directly 50% or more of the outstanding common stock of such Partner or (b) any entity which directly or through its Subsidiaries owns 50% or more of the common stock of the entity referred to in the preceding clause (a), and (c) each of the Subsidiaries referred to in the immediately preceding clause (b) and (B) in the case of the Loeks Partner, either of James Loeks or Barrie Loeks.

 

“ Book Value ” – The fair market value of any property at the time of its contribution to the Partnership.

 

“ Cash Flow ” – In respect of any Theatre Property shall mean (a) total operating revenue derived at such Property during the period in question (i) from .the sale of admission tickets and concession items, (ii) from the rental or sale of home video materials, (iii) from the rental of the Theatre, (iv) from the operation of vending and gaming machines, (v) from pay phones, and (vi) from any other source (excluding extraordinary or nonrecurring items or revenue attributable to the sale of fixtures, equipment, capital assets or operating

 

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leases), minus (b) the sum of the following: (i) cost of sales including film expenses, direct advertising expenses and concession purchases, and (ii) all direct operating expenses of the Theatre Property (including signs and marquees) including, without limitation, labor; employee benefits; security; utilities (including, without limitation, sewer rent and water charges), supplies and services; insurance; bank collection and deposit charges; marketing costs at the theatre level of group sales; cost of obtaining and maintaining operating licenses and fees; manager’s awards; direct theatre special event expenses; real property Taxes, sales Taxes, and franchise Taxes; maintenance and repair charges, including salary and compensation costs for maintenance and repair employees; and all amounts payable under leases including basic rent, percentage rent, common area charges, and merchant associations fees (excluding, however: the fees payable to the Booking Agent and the Operating Agent pursuant to Sections 16.6 and 17.6 hereof; and any “home office” expenses incurred by the Partnership or incurred by the Operating Agent or the Booking Agent and reimbursed by the Partnership in each case regardless of whether such fees, expenses or costs are allocated to the Theatre Properties for internal accounting purposes); all to be determined on an accrual basis in accordance with generally accepted accounting principles consistently applied.

 

“ Code ” – The Internal Revenue Code of 1986, as amended from time to time.

 

“ Contributed Assets ” – All of the rights, title and interests of Loeks and its Affiliates in, to and in respect of

 

(i) Each of the leases identified in Schedule 1.1 (the “Leases”) and the leasehold estates created by the Leases;

 

(ii) All rights of renewal under the Leases;

 

(iii) Each Theatre Property, and in the case of Theatre Properties which are situated on the Leased properties, other improvements on the land on which the Theatre Property is situated to the extent provided in the related Lease;

 

(iv) All easements, appurtenances, hereditaments, tenements and all the estate, rights and privileges of, in and to, or which Loeks (or any of its affiliates) is entitled to the benefit of in connection with the premises on which the Theatre Properties are located, to the extent that the same relate to the use, operation or ownership of the Theatre Properties;

 

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(v) All fixtures, equipment, machinery, supplies (including spare parts), concession equipment, open boxes of concession inventories and other personal property (excluding inventories of goods held for sale to the extent such items are in full boxes which could be returned to the supplier for credit) presently located or installed in the premises on which the Theatre Properties are located and used in connection with the Theatre Properties;

 

(vi) All assignable permits and licenses relating to the operation of the Theatre Properties; and

 

(vii) All contracts relating to the exhibition of motion pictures in the Theatre Properties after the Closing (as hereinafter defined) and all other tangible or intangible rights relating to the operation of the Theatre Properties after the Closing.

 

“ CPE ” – Columbia Pictures Entertainment, Inc., a Delaware corporation, and any successor thereto pursuant to any merger, consolidation, combination, recapitalization or similar reorganization.

 

“ Loeks Partner ” – At any time of determination, Loeks, or any other entity of which James and Barrie Loeks either severally or jointly, directly or indirectly beneficially own all of the outstanding capital stock {except for shares held by trusts as permitted under Section 21.2 hereof) and which at such time of determination and in accordance with this Agreement, holds all of the Partnership Interest originally held by Loeks.

 

“ Net Partnership Assets ” – The excess, if any, of total assets {other than property, plant and equipment included in any Theatre Property or capital leases of any Theatre Property) of the Partnership as of the Applicable Date over total liabilities of the Partnership as of the Applicable Date, all as set forth in regularly prepared financial statements of the Partnership in the ordinary course, in accordance with generally accepted accounting principles except that for purposes of computing the purchase price to be paid for any Partnership interest hereunder, the assets of a start-up Theatre Property which are included in the computation as Cost Basis shall be disregarded for purposes of computing total assets under this definition. Any disputes regarding the determination of Net Partnership Assets shall be resolved conclusively by the Accountant, whose decision shall be final and binding.

 

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“ Net Partnership Liabilities ” – The excess, if any, of total liabilities of the Partnership as of the Applicable Date over total assets {other than property, plant and equipment included in any Theatre Property or capital leases of any Theatre Property) of the Partnership as of the Applicable Date, all as set forth in regularly prepared financial statements of the Partnership in the ordinary course, in accordance with generally accepted accounting principles except that for purposes of computing the purchase price to be paid for any Partnership interest hereunder, the assets of a start-up Theatre Property which are included in the computation Cost Basis shall be disregarded for purposes of computing total assets under this definition. Any dispute regarding the determination of Net Partnership Liabilities shall be resolved conclusively by the Accountant, whose decision shall be final and binding.

 

“ Partners ” – Loeks and Star, while such Persons own Partnership Interests hereunder, or any other Person who may be admitted as a Partner in substitution for Loeks or Star in accordance with the terms of this Agreement. Reference to a “Partner” shall refer to either of the Partners.

 

“ Partnership ” – The partnership governed by this Agreement.

 

“ Partnership Act ” – The Michigan Uniform Partnership Act, as in effect from time to time.

 

“ Partnership Interest ” – The interest of a Partner in the Partnership.

 

“ Percentage Interest ” – The interest of each Partner in the capital, gains, profits and losses of the Partnership. As set forth in Section 6.1 hereof, the Percentage Interest of each of the Partners shall be 50 percent.

 

“ Person ” – Any individual, partnership, trust, corporation, firm or other entity.

 

“ Star Partner ” – At any time of determination, Star, or any other direct or indirect Subsidiary of CPE which, at such time of determination and in accordance with the terms of this Agreement, holds all of the Partnership Interest originally held by Star.

 

“ Subsidiary ” – A “Subsidiary” of a specified Person means an entity, 50% or more of the outstanding voting securities of which are owned by such Person and/or such Person’s other Subsidiaries.

 

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“ Tax Basis ” - The Partnership’s basis in any property for Federal income Tax purposes at the time of its contribution to the Partnership.

 

“ Taxes ” - All taxes, charges, fees, levies or assessments, including, without limitation, income, gross receipts, excise, real and personal property sales, transfer, license, payroll and franchise taxes, imposed by the United States, or any state, local or foreign government or subdivision or agency thereof; and such term shall include any interest, penalties or additions to tax attributable to such Taxes.

 

“ Territory ” - The State of Michigan excluding the Grand Rapids SMSA and the Muskegon SMSA.

 

“ Treasury Regulations ” - The Regulations issued by the United States Department of the Treasury, as amended from time to time, pursuant to the Code.

 

ARTICLE 2

 

FORMATION

 

The Partners hereby form, as of the date first above written, a general partnership pursuant to the provisions of the Partnership Act.

 

ARTICLE 3

 

NAME AND PLACE OF BUSINESS; NUMBER

 

3.1. Name . The business of the Partnership shall be conducted under the name “Loeks-Star Partners,” or such other name as shall be jointly selected by the Partners from time to time. Concurrently herewith, Loeks and Star are entering into that certain License Agreement, dated the date hereof, the form of which is attached as Exhibit A hereto (the “License Agreement”), providing for the use of the name “Loeks-Star” by the Partnership. With respect to such name, and if, at any time, the Partnership name shall include any other name of, or trade name used by, either Partner or any of its Affiliates (including without limitation “Star” and “Loeks”), (x) neither the Partnership nor the other Partner has or shall acquire any right, title or interest to such name or trade name and (y) if the Partner whose name or trade name or whose Affiliate’s name or trade name is so included withdraws from the Partnership as permitted by and in accordance with this Agreement from the Partnership, upon such Partner’s request the Partnership’s name shall be changed as promptly as practicable to a name which

 

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does not include the name or trade name of such Partner or any of its Affiliates.

 

3.2. Principal Place of Business . The principal place of business of the Partnership shall be at Grand Rapids, Michigan, or such other place as both Partners may jointly designate.

 

3.3. Number . At no time during the term of this Partnership shall there be more than two Partners.

 

ARTICLE 4

 

PURPOSES; LIMITED PURPOSES AND SCOPE OF AUTHORITY

 

4.1. Purposes . The sole purposes of the Partnership shall be to acquire, own, hold, improve, modify, develop, use, operate, manage and/or lease the motion picture theatres listed on Schedule 4.1(a), with such additions (but limited to motion picture theatres located or to be located in the Territory) or deletions therefrom as may hereinafter be mutually agreed upon by the Partners in writing from time to time (the properties listed on such Schedule together with any such additions and less any such deletions are hereinafter called the “Theatre Properties”), for the exhibition of motion picture films and the conduct of related businesses (including, if appropriate, closing or selling such Theatre Properties), and to do all other things reasonably incident thereto, in accordance with the terms of this Agreement. Without limiting the foregoing, the Partnership shall, among other things, complete the construction and development of, and operate, the Theatre Properties specified in Schedules 6.1(b) and 6.1(c).

 

4.2. Limited Purpose and Scope of Authority . This Agreement shall not be deemed to create a general partnership between the Partners with respect to any activities whatsoever, except activities within the scope and business purposes of the Partnership specified in Section 4.1 hereof, and, except as otherwise specifically provided in this Agreement, either Partner and its Affiliates may separately engage in other business ventures of every nature and description, independently or with others, including, but not limited to, the motion picture film exhibition business in all its phases and any other business, whether or not competitive with the business of the Partnership, and neither the Partnership nor the other Partner shall have any rights in and to such independent ventures or the income or profits derived therefrom. Except as otherwise specifically provided in this Agreement, either Partner shall be entitled to compete with the Partnership and exploit to the fullest extent all corporate and other opportunities without being required to offer the

 

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Partnership or the other Partner the opportunity to participate therein. Except as otherwise expressly provided herein, this Agreement shall not constitute either Partner the agent of the other Partner. Except as otherwise expressly provided herein, (i) neither Partner shall have any authority to bind or act for, or assume any obligations or responsibility on behalf of, the other Partner or the Partnership, and (ii) neither the Partnership nor either Partner shall be responsible or liable for any indebtedness or obligation of the other Partner incurred or arising either before or after the execution of this Agreement, except as to those joint responsibilities, liabilities, indebtedness or obligations incurred after the date hereof pursuant to and as limited by the terms of this Agreement.

 

ARTICLE 5

 

TERM

 

5.1. Term . The term of the Partnership shall begin on the date of this Agreement and shall continue until July 1 , 2063, unless sooner terminated pursuant to the provisions hereof.

 

5.2. No Termination, etc. Except as specifically provided in this Agreement:

 

(a) Both Partners shall continue as Partners hereunder;

 

(b) Neither Partner shall terminate or attempt to terminate this Agreement or voluntarily take any action which would result in such termination; and

 

(c) Neither Partner shall file for, pursue or seek any partition of the assets of the Partnership.

 

5.3. Upset Date . This Agreement and the Partnership may be terminated by either Partner if the Closing shall not have occurred by December 31, 1988.

 

ARTICLE 6

 

CAPITAL CONTRIBUTIONS; PERCENTAGE INTERESTS;

CAPITAL ACCOUNTS; WITHDRAWAL FROM ACCOUNTS

 

6.1. Contributions . (a) Concurrently herewith, each Partner has made a contribution to the capital of the Partnership of cash in the amount of $100.

 

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(b) At the Closing (as defined herein), Loeks shall make a contribution to the capital of the Partnership of: (i) its entire interest in the Contributed Assets, free and clear of all liens, encumbrances, charges and interests of third parties of any kind (“Encumbrances”), except Permitted Encumbrances (as defined herein) and (ii) its entire interest in the undeveloped Theatre Property listed in Schedule 6.1(b) (the “Loeks Undeveloped Theatre Property”). The fair market value of Loeks’ capital contribution shall be deemed to be $9 million, taking into account the parties’ agreement that no value shall be attributed to the Loeks Undeveloped Theatre Property.

 

(c) At the Closing, Star shall (i) contribute to the Partnership cash in the amount of $320,000, (ii) issue to the Partnership a promissory note payable to the Partnership (the “Partnership Note”) in the principal amount of $8,680,000 and (iii) contribute to the Partnership its entire interest in the undeveloped Theatre Properties listed on Schedule 6.1(c) (the “Star Undeveloped Theatre Properties”). The fair market value of Star’s capital contribution shall be deemed to be $9 million, taking into account the parties’ agreement that no value shall be attributed to the Star Undeveloped Theatre Properties.

 

(d) The Partnership Note (i) shall be in the form of Schedule 6.1(d) hereto, (ii) shall be payable on July 30, 1991 or otherwise as required by the terms of the Partnership Note, (iii) shall be required to be prepaid as demanded by the Loeks Partner to fund costs payable by the Partnership to construct, acquire, improve or renovate Theatre Properties, to make capital expenditures for existing Theatre Properties, to maintain cash reserves for working capital of $20,000 per screen operated by the Partnership, and to fund expenses covered in the Approved Budget (as defined herein), (iv) shall be guaranteed by CPE, (v) shall be further secured by the assignment of the Star Partner’s interest in the Partnership and its right to receive distributions from the Partnership, and (vi) shall bear interest, payable monthly, at the prime rate as announced from time to time by Old Kent Bank & Trust Co. of Grand Rapids, Michigan (the “Prime Rate”); provided that interest shall not commence to accrue on the Note until the date that Loeks Partner shall have contributed to the Partnership its entire interest in the Contributed Assets as required by Section 6.1(b)(i) above.

 

6.2. Assumption of Liabilities . (a) It is the agreement of the Partners that all costs, expenses, liabilities and obligations and claims in respect thereof, relating or attributable to, or arising by reason of, the use, operation or ownership of the Contributed Assets and the business of which the Contributed Assets are a part on or prior to the Closing, whether known, unknown, contingent or accrued (other than the

 

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Permitted Encumbrances) shall be borne by the Loeks Partner, and the Loeks Partner agrees to indemnify and hold harmless the Star Partner and the Partnership against all such costs, expenses, liabilities and obligations and claims. The obligations of the Loeks Partner under this Section 6.2(a) shall be guaranteed by James Loeks and Barrie Loeks.

 

(b) As of the Closing, the Partnership shall assume all obligations relating to the use, operation, development or ownership of the Contributed Assets, the Loeks Undeveloped Theatre Properties and the Star Undeveloped Theatre Properties and the business of which such assets are a part first arising or attributable to facts or events first occurring after the Closing but only to the extent that such obligations are not attributable to facts, acts or omissions occurring prior to the Closing.

 

(c) Prior to the Closing each Partner shall deliver to the other Partner all plans, specifications, proposed or executed leases and other agreements and a schedule of development costs, as of the date of delivery, relating to the undeveloped Theatre Properties to be contributed by such Partner. The Partnership shall not assume any obligations for unpaid expenses or reimburse either Partner for expenses incurred and paid prior to the Closing in connection with the Undeveloped Theatre Properties except for those expenses set forth in Schedule 6.2(c).

 

(d) Loeks shall pay and make all filings with respect to all transfer, documentary and sales Taxes, recording fees and similar charges incurred in connection with the contribution to the Partnership of the Contributed Assets.

 

6.3. Apportionments . (a) The following items with respect to the Contributed Assets shall be adjusted and prorated between Loeks and the Partnership: (i) rent (including percentage rent) and other charges payable under the Leases, including common area and mall charges, real property Taxes and merchants’ association fees, (ii) all Taxes (which, for the purposes of such proration, shall be deemed paid in advance on the due date thereof), (iii) wages, vacation pay and fringe benefits of Theatre Property employees (to the extent employed by the Partnership or by Loeks or its affiliates for the account of the Partnership pursuant to this Agreement), (iv) utility charges and deposits and fuel and water charges, (v) film rental charges, film guarantees and advances, (vi) cooperative advertising, (vii) concession inventories (limited to unopened boxes of a quality and quantity saleable at the Theatre Properties in the ordinary course of business after the date hereof) and supplies, in each case at cost and (viii) “goodwill” discount tickets sold by Loeks or an Affiliate (excluding free passes and other free promotional tickets) outstanding as of the Closing.

 

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(b) Loeks shall be solely responsible for all real property Taxes, sewer rents, or ad valorem personal property Taxes relating to the Contributed Assets payable with respect to all years prior to 1988 whether or not a Tax rate has been fixed or a Tax bill has been rendered prior to the Closing. In addition, real property Taxes, sewer rents and ad valorem personal property Taxes payable with respect to 1988 relating to the Contributed Assets shall be pro-rated as contemplated by paragraph (a) above. The parties shall estimate the amount of such Taxes and sewer rents as of the Closing on the basis of the applicable rates for the next preceding year or, where available, on published governmental estimates applied to the latest assessed valuation. Such amount shall then be reapportioned on the basis of the actual Tax bills when such bills are rendered.

 

(c) The percentage rent payable under each Lease shall be apportioned between the Loeks Partner and the Partnership in proportion to the gross receipts of the respective Theatre Property for the fraction of the year for which percentage rent is payable that precedes the Closing to total gross receipts for the rent year. The parties shall estimate the amount of the percentage rent adjustment as of the Closing, and will make a final apportionment with respect to each Lease when the amount of percentage rent payable for the applicable year shall have been finally determined.

 

The foregoing items shall be adjusted and prorated as of 11:59 p.m. on the Closing Date. Any adjustment under this Section 6.3 shall be paid in cash within 10 days after the date of determination of such adjustment. Any adjustment under this Section 6.3 shall not affect, or in any way be taken into account in, calculating Loeks’ Capital Account balance or Loeks ’ share of Partnership Distributions.

 

6.4. Additional Contributions . Except as provided in Section 19.1(a)(3) below, no Partner shall, without its consent, be required to make any additional capital contributions to the Partnership. Except as otherwise specifically provided in this Agreement, or as the Partners shall mutually agree in writing, loans shall not be made by either Partner to the Partnership.

 

6.5. Use of Capital . All capital contributions shall be available to the Partnership to carry out purposes and objectives of the Partnership.

 

6.6. Percentage Interests . The “Percentage Interest” of Loeks and Star shall each be 50%.

 

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6.7. Capital Account . (a) Each Partner shall have a Capital Account. “Capital Account” shall mean an account of each Partner determined and maintained throughout the full term of the Partnership on the accrual basis in accordance with the capital accounting rules of Section 1.704-l(b)(2)(iv) of the Treasury Regulations and this Section 6.7 (to the extent it is consistent with Section 1.704-l(b)(2)(iv) of the Treasury Regulations). The Capital Account balances of each Partner shall be zero prior to the initial contributions of the Partners pursuant to Section 6.1 hereof.

 

(b) For purposes of maintaining the Capital Accounts, all items of income, gain, loss and deduction, as well as any expenditures which are permitted to be neither capitalized nor deducted for Federal income Tax purposes, shall be allocated or apportioned in proportion to the Partners’ respective Percentage Interests.

 

(c) Upon the transfer of a Partnership Interest, the transferee shall succeed to the Capital Account attributable to the transferred Partnership Interest.

 

6.8. Withdrawal . Neither Partner shall be entitled (i) to the withdrawal or return of any of its capital from the Partnership, except as expressly provided herein, or (ii) to interest upon any capital contributed by it to the Partnership (provided, however, that interest as provided herein shall be paid on loans from either Partner to the Partnership) or (iii) to receive property other than cash in return for its capital contribution.

 

ARTICLE 7

 

LOANS; SECURITY INTERESTS

 

7.1. Capital Expenditure Loans . (a) After the Partnership Note is paid in full, Star shall lend or shall arrange for loans to be made to the Partnership (“Capital Expenditure Commitment”), up to an aggregate amount of $15 million, to finance expenditures for capital assets or acquisitions of properties which the Partnership (with the consent of both partners) proposes to acquire (“Capital Expenditure Loans”). Capital Expenditure Loans shall not be used for working capital or to meet day to day obligations or trade liabilities. The Capital Expenditure Commitment shall be guaranteed by CPE. The Partnership shall not be entitled to reborrow the Capital Expenditure Loans when repaid. Capital Expenditure Loans shall bear interest at the rate of not more than 11% per annum and in the case of a Capital Expenditure Loan made by Star, the rate shall be 11% per annum. If the Partnership obtains a loan from a person other than Star to

 

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finance capital expenditures or acquisitions which bears a variable interest rate, then at such time as such interest rate exceeds 11% per annum the Partnership shall, at the request of the Loeks Partner, be entitled to draw upon the Capital Expenditure Commitment to the extent available to refund or refinance such loan. Each Capital Expenditure Loan shall be repayable in 120 equal consecutive installments comprising principal and interest, sufficient to repay such Capital Expenditure Loan in fixed level installments over 10 years, with the first such installment due on the first day of the month following the date the Theatre Property which is the subject of such loan is opened (in the case of new construction) or acquired (in the case of an acquisition) or the date the capital assets which are the subject of such loan are acquired.

 

All Capital Expenditure Loans shall be evidenced by a Promissory Note of the Partnership in form satisfactory to the Partners, and will be secured by each Partner’s interest in the Partnership and by all of the assets of the Partnership but otherwise shall be without recourse to the Partners.

 

After the Capital Expenditure Loans shall have been expended by the Partnership, the Partners shall meet to discuss in good faith the method of financing further capital expenditures and acquisitions.

 

7.2. Security Interests . Except as otherwise specifically provided in this Agreement, neither Star nor the Loeks Partner shall incur on behalf of the Partnership, or pledge its assets as security for, any indebtedness except indebtedness relating to borrowings the proceeds of which are used by the Partnership. Loeks shall be entitled to pledge its interest in the Partnership and its interest in the Partnership assets, including its right to receive distributions from the Partnership, as security for indebtedness incurred by Loeks for the sole purposes of (i) purchasing the stock of Loeks Winchester Theatres, Inc. and Loeks Lincoln Park Theatres, Inc. which is not presently owned by James Loeks or Barrie Loeks and paying off existing indebtedness of Loeks Lincoln Park Theatres, Inc. or (ii) funding a capital contribution to the Partnership as specifically contemplated by Section 19.1(a)(3); provided , however , that in the case of the foregoing clause (i) the principal amount of such secured debt shall not exceed $2.5 million, and provided , further , that in the case of either clauses (i) or (ii) Loeks shall apply a minimum of 20% of each Partnership Distribution (as hereinafter defined) it receives to the payment of principal and interest on such secured debt; to effect such application, Loeks, prior to incurring any such indebtedness shall issue an irrevocable deed of direction to the Partnership directing it to pay 20% of all Partnership Distributions to be paid to the Loeks Partner to repay such indebtedness, such deed of direction to be in the form of

 

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Schedule 7.2. Failure to issue such deed of direction shall constitute a default hereunder.

 

ARTICLE 8

 

REPRESENTATIONS AND WARRANTIES OF LOEKS

 

In order to induce Star to enter into this Agreement, effective as of the Closing Date Loeks shall make the representations and warranties set forth in Exhibit B hereto which representations and warranties are incorporated herein as if set forth in full herein.

 

ARTICLE 9

 

REPRESENTATIONS AND WARRANTIES OF STAR

 

In order to induce Loeks to enter into this Agreement effective as of the Closing Date Star shall make the representations and warranties set forth in Exhibit C hereto which representations and warranties are incorporated herein as if set forth in full herein.

 

ARTICLE 10

 

CONDITIONS TO OBLIGATIONS OF LOEKS

 

10.1. Conditions . The obligation of Loeks to make its contributions at Closing to the capital of the Partnership provided for herein shall be subject to the performance by Star in all material respects of all of the agreements to be performed by it hereunder on or before the Closing Date, and the accuracy in all material respects of the representations in Exhibit C and to the following further conditions:

 

(a) There shall not be pending or threatened on the Closing Date any action, suit or proceeding, whether administrative or judicial, seeking to enjoin, restrain, prohibit or invalidate the consummation of the transactions contemplated by this Agreement, nor shall there be in effect on the Closing Date any order, judgment or decree of any court or other governmental body enjoining, restraining or otherwise prohibiting consummation of the transactions contemplated by this Agreement or subjecting Loeks or the Partnership to any liability.

 

(b) Loeks shall have received from counsel to Star, an opinion in the form of Exhibit D.

 

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(c) Pursuant to Section 27.1, at the Closing Star shall have made an aggregate payment of $500,000 to James Loeks and Barrie Loeks.

 

(d) Loeks shall have completed the acquisition of the entire equity interest in Loeks Winchester Theatres, Inc., and Loeks Lincoln Park Theatres, Inc.

 

(e) Old Kent Bank and Trust Company shall have discharged any and all mortgages and terminated any and all security interests upon the real and personal property of Loeks Lincoln Park Theatres, Inc. and Loeks Winchester Theatres, Inc.

 

(f) After the date hereof, Star shall have incurred no expenses or obligations without the consent of Loeks, relating to the Star Undeveloped Theatre Properties.

 

(g) Loeks shall have received a letter from CPE, dated as of the Closing Date, in form and substance reasonably satisfactory to Loeks, stating that CPE agrees to perform and be bound by the terms of this Agreement applicable to it, as if it were a signatory hereto.

 

(h) There shall have been obtained any necessary consents to the assignment of the Leases to the Partnership, and any necessary waivers of radius restrictions in such Leases.

 

(i) Star shall have delivered to Loeks the Disclosure Schedules required to be delivered by Star hereunder and the exceptions to the representations and warranties of Star set forth in such Disclosure Schedules shall be reasonably acceptable to Loeks. If Loeks does not accept any exception set forth in a proposed Disclosure Schedule received from Star, Loeks shall object to such exception by written notice to Star within ten (10) days after its receipt of such Disclosure Schedule. If Loeks does not object to any exception within such period, the condition set forth in this Section 10.1(i) shall be waived with respect to such exception.

 

(j) Star shall have delivered to Loeks a letter dated as of the Closing Date, in form and substance reasonably satisfactory to Loeks, certifying that the conditions specified in this Section 10.1 have been satisfied (other than any conditions waived in writing by Loeks).

 

ARTICLE 11

 

CONDITIONS TO OBLIGATIONS OF STAR

 

11.1. Conditions . The obligation of Star to make its contributions at Closing to the capital of the Partnership provided for herein shall be subject to the performance by Loeks in all material respects of all of the agreements to be

 

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performed by it hereunder on or before the Closing Date, and the accuracy in all material respects of the representations in Exhibit B and to the following further conditions:

 

(a) Loeks shall have conducted its business operations at the Theatre Properties in the ordinary course and in the same manner in which the same have heretofore been conducted.

 

(b) After the date hereof, Loeks shall have incurred no expenses or obligations, without the consent of Star, relating to the Loeks Undeveloped Theatre Property.

 

(c) Star shall have received, from counsel to Loeks, an opinion in the form of Exhibit E.

 

(d) There shall not be pending or threatened on the Closing Date any action, suit or proceeding, whether administrative or judicial, seeking to enjoin, restrain, prohibit or invalidate the consummation of the transactions contemplated by this Agreement or which may adversely affect the right of the Partnership directly or indirectly to lease, operate or control any or all of the Theatre Properties, nor shall there be in effect on the Closing Date any order, judgment or decree by any court or other governmental body enjoining, restraining or otherwise prohibiting the consummation of the transactions contemplated by this Agreement or subjecting Star or the Partnership to any liability.

 

(e) Star shall have received a letter from James Loeks and Barrie Loeks, dated as of the Closing Date, in form and substance reasonably satisfactory to the Star Partner, stating that each of James Loeks and Barrie Loeks agrees to perform and be bound by the terms of this Agreement applicable to him or her, as if each was a signatory hereto.

 

(f) Star shall have received owner’s policies of title insurance, in the name of the Partnership at Star’s expense, on American Land Title Association Owner’s Form B (1987), including mechanic’s lien coverage and survey coverage, issued by a reputable title insurance company satisfactory to Star (the “Title Company”), dated the Closing Date in amounts reasonably acceptable to Star and reinsured by reputable title insurance companies (the “Reinsurance Companies”), reasonably satisfactory to Star in amounts reasonably acceptable to Star, which Reinsurance Companies each shall have entered into a direct access agreement with Star, with respect to the Theatre Properties, insuring the Partnership’s leasehold interest in such Theatre Properties, subject only to Permitted Encumbrances (including easements and restrictions of record which do not interfere with the use of any of the Theatre Properties) and to no other exceptions, whether standard, printed or otherwise,

 

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and containing non-imputation endorsements and such other affirmative insurance as Star may reasonably request.

 

(g) Star shall have obtained, at its expense, ALTA surveys reasonably satisfactory to Star, of the Theatre Properties.

 

(h) Loeks shall have delivered to Star the Disclosure Schedules required to be delivered by Loeks hereunder and the exceptions to the representations and warranties of Loeks set forth in such Disclosure Schedules shall be reasonably acceptable to Star. If Star does not accept any exception set forth in a proposed Disclosure Schedule received from Loeks, Star shall object to such exception by written notice to Loeks within ten (10) days after its receipt of such Disclosure Schedule. If Star does not object to any exception within such period, the condition set forth in this Section 10.1(i) shall be waived with respect to such exception.

 

(i) There shall have been obtained any necessary consents to the assignment of the Leases to the Partnership, and any necessary waivers of radius restrictions in such Leases.

 

(j) Loeks shall have delivered to Star a letter dated as of the Closing Date, in form and substance reasonably satisfactory to Star, certifying that the conditions specified in this Section 11.1 have been satisfied (other than any conditions waived in writing by Star).

 

(k) Loeks shall have obtained non-disturbance agreements in form and substance satisfactory to Star, from all mortgagees of the Theatre Properties included in the Contributed Assets.

 

ARTICLE 12

 

CLOSING

 

12.1. Closing . The closing of the contributions to the capital of the Partnership provided for herein (the “Closing”) shall take place at the offices of Warner, Norcross & Judd, 900 Old Kent Building, Grand Rapids, Michigan 49503, on September 30, 1988, provided, however, that if all of the conditions to the parties’ obligations to close hereunder are not satisfied or waived on such date, the Closing shall be adjourned to and be held on the fifth business day after the last of such conditions shall have been satisfied or waived, or on such other mutually agreeable subsequent date, but in no event later than December 31, 1988. The date for the Closing is herein called the “Closing Date”.

 

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ARTICLE 13

 

TAXES

 

13.1. Tax Allocations; Code Section 704(c) . (a) Each item of income, gain, loss and deduction for Federal income Tax purposes shall be allocated between both Partners in accordance with their respective Percentage Interests; provided, however, that in accordance with Section 704(c) of the Code and the Treasury Regulations thereunder, income, gain, loss, and deduction (including depreciation and amortization), as determined for Federal income Tax purposes, with respect to any property the Book Value of which differs from its Tax Basis shall, for Tax purposes, be allocated between both Partners so as to take account of any variation between the Tax Basis of such property to the Partnership and its Book Value.

 

(b) Tax credits shall be allocated between both Partners in accordance with Section 1.704-1(b)(4)(ii) of the Treasury Regulations.

 

(c) Any elections or other decisions relating to such allocations shall be made jointly by the Partners in any manner that reasonably reflects the purpose and intention hereof. Allocations pursuant to this Section 13.1 are solely for Tax purposes and shall not affect, or in any way be taken into account in calculating either Partner’s Capital Account balance or either Partner’s share of distributions pursuant to any provision hereof. Any elections available under regulations issued under Section 704(c) of the Code shall be made or not made with a view toward allocating tax depreciation and amortization deductions as equally as possible between Star and Loeks.

 

13.2. Tax Elections . Either Partner may cause the Partnership to make the election provided for in Section 754 of the Code on behalf of the Partnership. Any other election on behalf of the Partnership under the Code shall be made only by mutual agreement of the Partners.

 

13.3. Tax Matters Partner . The Operating Agent shall be designated as the “Tax matters partner” (as defined in Section 6231(a)(7) of the Code) of the Partnership and shall be authorized and required to represent the Partnership (at the expense of the Partnership) in connection with all examinations of the affairs of the Partnership by any Federal, state or local Tax authorities, including any resulting administrative and judicial proceedings, and to make reasonable expenditures of Partnership funds for professional services and costs associated therewith. The other Partner shall cooperate with the Tax matters partner and the Tax matters partner shall consult fully with the other Partner in connection with the

 

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conduct of all such proceedings. The Tax matters partner shall not settle any claim or terminate any proceeding without the consent of the other Partner.

 

13.4. Preparation of Tax Returns . Both Partners, at the expense of the Partnership, shall jointly arrange for the preparation, in accordance with the terms of this Agreement, and timely filing of all Tax and information returns of the Partnership showing all items of income, gain, deduction, loss and credit necessary for Federal, state and local income Tax purposes, and shall use all reasonable efforts to furnish to each other within ninety days of the close of each Taxable Year the Tax information reasonably required for Federal, state and local income Tax reporting purposes. The classification, realization and recognition of income, gains, losses, deductions and credits and other items of the Partnership shall be on the accrual method of accounting for Federal income Tax purposes. Each of the Partners shall, in its respective income Tax return and other statements filed with the Internal Revenue Service and other Taxing authorities, report Taxable income and credits in accordance with the provisions of this Agreement.

 

ARTICLE 14

 

DISTRIBUTIONS

 

14.1. Distributions . The Partnership shall, no less often than quarterly, distribute its available cash (“Partnership Distributions”) to both Partners in accordance with their respective Percentage Interests, subject to the retention of cash reserves for working capital in the amount of $20,000 for each screen operated by the Partnership as of the date of such Partnership Distribution, or such other amount as may be mutually agreed upon by the Partners. The Partners shall, at such time or times as either Partner reasonably requests, meet in good faith to consider an increase in the working capital reserves which either Partner believes to be appropriate to meet pending or anticipated liabilities.

 

14.2. Distributions in Kind . Assets of the Partnership (other than cash) shall not be distributed in kind to the Partners, except, if both Partners so determine, in liquidation of the Partnership. If any assets of the Partnership are distributed to the. Partners in kind, such assets shall be valued on the basis of the fair market value thereof on the date of the distribution.

 

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ARTICLE 15

 

MANAGEMENT

 

15.1. Authority . Except foe the powers specifically granted herein to the Operating Agent or the Booking Agent, as the case may be, all decisions with respect to the management and control of the business and affairs of the Partnership shall, except as specifically provided otherwise in this Agreement, require the unanimous consent and approval of the Partners. Each Partner shall appoint a representative to consult from time to time with the representative of the other Partner to discuss the business and affairs of the Partnership.

 

15.2. Actions Requiring Unanimous Consent of the Partners . Without limiting the generality of Section 15.1 hereof and except as otherwise specifically provided in this Agreement, the unanimous consent of both Partners shall be necessary:

 

(a) to execute, terminate, modify, amend, renew or extend any lease or sub-lease (a “Lease”) with respect to any present or future Theatre Property or to execute, terminate, modify, amend, renew or extend any other Key Documents;

 

(b) to terminate operations at any Theatre Property;

 

(c) to effect a sale or other disposition of all or substantially all of (i) the Partnership’s property or assets or (ii) the Partnership’s interest in, or the assets of, any Theatre Property;

 

(d) to acquire by purchase, lease or otherwise an interest (as owner, lessee, manager or otherwise) in any Theatre Property or substantial assets or substantial property;

 

(e) to cause the Partnership to incur indebtedness for borrowed money, guarantee indebtedness, or pledge any of its assets;

 

(f) to commence or settle any legal action on behalf of the Partnership, or to release, compromise, assign or transfer any material claims or material rights of the Partnership;

 

(g) to cause the Partnership to enter into any agreement or transaction with any Partner or any Affiliate of a Partner;

 

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(h) to change the Partnership’s elections or choices of methods of reporting income or loss for Federal, state or local income Tax purposes;

 

(i) except in accordance with a previously approved budget, to make any material alterations, renovations or restorations to any Theatre Property, whether or not in connection with any casualty;

 

(j) to do any act in contravention of this Agreement;

 

(k) to transact business other than in the ordinary course; or

 

(l) to enter into any agreement providing for any of the foregoing.

 

15.3. Timely Performance . The Operating Agent and the Booking Agent shall each perform all of their respective obligations under this Agreement in a proper, prompt and timely manner. Each shall, subject to the terms and limitations of this Agreement, furnish the other with such information and assistance as the other may from time to time reasonably request in order to perform its responsibilities hereunder, subject to the terms and limitations of this Agreement. The Operating Agent and the Booking Agent shall each take all such actions as the other may from time to time reasonably request and otherwise cooperate with the other so as to avoid or minimize any delay or impairment of either party’s performance of its obligation’s under this Agreement.

 

15.4. Procedures . (a) The Booking Agent or the Operating Agent, as the case may be, may execute for and on behalf of the Partnership any documents or instruments in connection with any actions permitted to be taken by it under this Agreement, and such execution by the Booking Agent or the Operating Agent alone will bind the Partnership without any signed authorization by the other Partner. If the Booking Agent or the Operating Agent, as the case may be, requests, the other Partner will join in such execution and/or execute and deliver any instruments the Booking Agent or the Operating Agent may reasonably require to confirm its authority hereunder.

 

(b) Any person dealing with the Booking Agent or Operating Agent, as the case may be, may rely upon a certificate of the Partnership signed by the Booking Agent or the Operating Agent, as the case may be, as to the existence or non-existence of any fact or facts which constitute a condition precedent to acts by the Booking Agent or the Operating Agent.

 

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ARTICLE 16

 

OPERATING AGENT

 

16.1. Operating Agent . The term “Operating Agent” shall mean the Loeks Partner, except that if (i) the Loeks Partner shall be deemed Bankrupt, or (ii) whether or not authorized in accordance with the terms of this Agreement, the Loeks Partner shall attempt to withdraw from the Partnership for any reason or give notice of intention to withdraw from the Partnership for any reason, then, at the option of the Star Partner, the Star Partner shall (in addition to any other rights or remedies it may-have hereunder) be entitled to assume the duties and powers of the Operating Agent under this Article 16 and, from and after the fifth business day after the Star Partner shall have delivered to the Loeks Partner notice of its election to assume such duties and powers, the Star Partner shall be the Operating Agent. If the Star Partner shall become the Operating Agent, the Loeks Partner shall cooperate with the Star Partner in facilitating such transition, including by delivering to the Star Partner, at the expense of the Loeks Partner, the original books of account, records and other documentation which it shall have in its possession relating to the performance of its duties or powers as the Operating Agent under this Article 16.

 

16.2. Operating Agent’s Duties and Powers .

 

(a) General Scope . (1) Except as otherwise specifically provided in this Agreement, the Operating Agent shall manage, coordinate and supervise the proper conduct of the ordinary and usual business and affairs of the Partnership excluding those areas falling within the scope of the duties and powers of the Booking Agent, as set forth in Article 17 below, but including all aspects of the day-to-day physical operation and maintenance of the Theatre Properties (collectively the “Operating Management Activities”). The Operating Management Activities shall, subject to Section 16.3, be conducted in a manner (hereinafter referred to as “Operating Management Standards”) consistent and in accordance with, in the case of each Theatre Property, (i) the operation of such Theatre Property as a First-Class Theatre including concessions (unless both Partners otherwise agree), (ii) prudent business and management practices applicable to the operation, maintenance and management of such Theatre Property as a First-Class Theatre, and (iii) the requirements of any leases, mortgages, certificates of occupancy, permits, licenses, consents or other recorded and unrecorded agreements (collectively, “Key Documents”) now or hereafter affecting such Theatre Property. Except as otherwise specifically provided in this Agreement, the Operating Agent shall have such responsibilities, and shall perform and take, or cause to be

 

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performed or taken, all such services and actions customarily performed or taken by the Operating Agent prior to the Closing with respect to each Theatre Property, as shall be necessary or advisable for the proper conduct of the Operating Management Activities in accordance with the Operating Management Standards, including, without limitation, the duties and powers set forth in subsections (b) through (m) below. The Operating Agent shall have no liability to the Partnership with respect to the conduct of the Operating Management Activities other than to carry out the Operating Management Activities in accordance with the Operating Management Standards in a reasonable manner and the Partnership shall indemnify and hold harmless the Operating Agent against all obligations and liabilities incurred by the Operating Agent in the performance of its duties hereunder as provided in Section 16.7 below.

 

(2) Unless otherwise specifically provided in this Agreement, all services and actions which the Operating Agent is required or permitted to perform or take, or cause to be performed or taken, under this Agreement in connection with the Operating Management Activities shall be performed or taken, as the case may be, on behalf of the Partnership, at the Partnership’s sole expense and within the limitations of and in accordance with the Approved Capital and Operating Budgets; provided, that, notwithstanding anything to the contrary contained herein, but subject to Section 20.2, the Operating Agent need not take any action it would otherwise be required to take if it has reasonable grounds to believe that the Partnership (to the extent it is required to do so) will not bear the expense of such action or will not have sufficient funds to bear the expense of such action.

 

(3) As used in this Agreement, the term “First-Class Theatre ” shall mean, with respect to any Theatre Property, a first-class, and (except as the Partners may otherwise mutually agree) first-run motion picture theatre, as determined by reference to the geographic area in which such Theatre Property is located.

 

(4) All expenses charged by the Operating Agent to the Partnership (or incurred by the Operating Agent on behalf of the Partnership) shall be reasonable for comparable theatre properties in the geographic area in which the Theatre Property is located, and shall be without markup or profit to the Operating Agent.

 

(b) Employees . The Operating Agent shall cause the Partnership to employ personnel to operate, maintain and manage each Theatre Property. The Operating Agent shall direct and supervise such personnel in the performance of their duties and shall determine the wages, benefits and other terms and conditions of their employment. At its option, the Operating

 

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Agent may also employ its own personnel to assist in the performance of the Operating Management Activities, or may contract with a management company to assist in the performance of the Operating Management Activities.

 

(c) Concessions . The Operating Agent shall, at the expense and on behalf of the Partnership, operate, maintain and manage the sale of concessions and the operation of vending and video and other gaming machines, at each of the Theatre Properties, and shall determine in its reasonable commercial judgment the items to be sold and the prices to be charged to customers for the purchase of such items or for the use of such machines, provided , that the Operating Agent shall not, without the other Partner’s approval, discontinue the sale or change the brands of any type of concession item which accounts for over 25% of the gross concession sales of any Theatre Property.

 

(d) Construction of New Theatre Properties . The Operating Agent shall supervise and manage, on behalf of the Partnership, the design and construction of new Theatre Properties including without limitation the undeveloped Theatre Properties listed in Schedules 6.1(b) and 6.1(c) hereto.

 

(e) Professionals and Contractors . To the extent the Operating Agent deems necessary in connection with the Operating Management Activities and the activities set forth in Section 16.2(d) above, the Operating Agent shall identify and enter into contracts on behalf of the Partnership with architects, engineers, accountants, attorneys, tradesmen and other independent contractors to perform services and supervise the administration, and monitor the performance, of all work to be performed and services to be rendered under all such contracts. The Operating Agent shall use due care in the selection and supervision of all such professionals and other independent contractors. The Operating Agent shall not enter into any contract with any such professional or other independent contractor which would require the payment of more than $50,000 in any 12-month period unless such contract is provided for in an Approved Operating Budget or Approved Capital Budget or is approved by the Booking Agent.

 

(f) Maintenance . The Operating Agent shall cause each Theatre Property to be maintained in a manner consistent with Operating Management Standards. The Operating Agent shall, except as otherwise specifically provided in this Agreement, enter into such service, maintenance and other contracts, or otherwise obtain or provide such service, maintenance or refurbishment, as shall be necessary or appropriate for the operation, maintenance and refurbishment of each Theatre Property in a manner consistent with Operating Management Standards. Except with the prior written approval of the Booking Agent, no such contract shall be for a term of

 

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more than one year, unless it may be cancelled without penalty upon not more than 30 days’ notice. The Operating Agent shall purchase, at the expense and on behalf of the Partnership and in accordance with an Approved Budget, in reasonable quantities and at reasonable prices all supplies, materials, tools and equipment as shall be necessary or appropriate for the operation and maintenance of each Theatre Property in accordance with the Operating Management Standards.

 

(g) Repairs . The Operating Agent shall, except as otherwise specifically provided in this Agreement, cause such ordinary and necessary repairs to be made to each Theatre Property, and all equipment and systems located in or servicing such Theatre Property, as shall be necessary or advisable for its operation and maintenance in accordance with the Operating Management Standards.

 

(h) Insurance . The Operating Agent shall obtain and maintain for each Theatre Property all such insurance coverage as is customary and appropriate for comparable properties in the geographic area in which such Theatre Property is located. Notwithstanding the foregoing, the Operating Agent shall maintain a policy of public liability insurance from a nationally recognized insurance company for property damage and personal injury (including death) in an amount of not less than $10 million combined single limit (consisting of primary or umbrella coverage) and the Approved Operating Budget shall provide for payment of all necessary premiums for such policy. The Partnership and each of the Partners shall be named as insured parties under all insurance policies. The Operating Agent shall upon request provide to the other Partner copies of all insurance policies.

 

The Operating Agent shall monitor the insurance coverage of the Partnership and shall at least annually advise the other Partner if, in the Operating Agent’s judgment, the Partnership should change the types or amounts of casualty, liability or other insurance it carries. The Operating Agent shall prepare and file all reports, claims, notices and other documents required in connection with all policies of insurance carried by the Partnership and any claims thereunder. The Operating Agent shall advise the other Partner of any material casualty to any Theatre Property, or of any material claims asserted by third parties for personal injury or property damage. Any casualty to any Theatre Property resulting in damage exceeding $50,000, or any claim by a third party for more than $50,000, shall be deemed material. If the amount of any casualty insurance claim or claim by any third party is $50,000 or more, the Operating Agent shall not agree to any settlement without the prior written consent of the Booking Agent.

 

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(i) Compliance with Laws . The Operating Agent shall take or cause to be taken all such appropriate actions in and about or affecting each Theatre Property as shall be necessary to cause the Partnership to be in compliance with all legal requirements applicable to such Theatre Property (including legal requirements applicable to the sale of confections and other concession items) and the requirements of any Board of Fire Underwriters or similar agency. Notwithstanding the cost limitations set forth in this Agreement, the Operating Agent may, without the other Partner’s prior written approval, take or cause to be taken any such actions without limitation as to cost if failure to do so would or might, in the Operating Agent’s reasonable judgment, expose the Operating Agent or the Partnership to criminal or civil liability; provided, however, that in each such instance the Operating Agent shall, before taking or causing to be taken any such action, notify the other Partner of the need for such action and use reasonable efforts to obtain the other Partner’s approval. The Operating Agent shall promptly notify the other Partner of any violation, order, rule or determination affecting any Theatre Property of any governmental authority or Board of Fire Underwriters or similar agency. Each Partner shall promptly notify the other Partner of all litigation of which it is aware filed against the Partnership, any Theatre Property, or such Partner in connection with or relating to the Partnership, claiming damages in excess of $25,000.

 

(j) Taxes . The Operating Agent shall timely prepare for each Theatre Property Tax returns, and obtain and verify bills for real estate, personal property, and all other similar Taxes and assessments, if any, against such Theatre Property and promptly cause the Partnership t