2,352,000 Common Shares of Beneficial Interest
ENTERTAINMENT PROPERTIES TRUST
September 17, 2003
RBC Dain Rauscher Inc.
One Beacon Street- 6th Floor
Boston, MA 02108
Ladies/Gentlemen:
Entertainment Properties Trust, a Maryland real estate investment trust
(the "Company"), proposes, subject to the terms and conditions stated herein, to
issue and sell to RBC Dain Rauscher Inc. (the "Underwriter") an aggregate of
2,352,000 (the "Firm Shares") of its common shares at beneficial interest, par
value $.01 per share (the "Common Shares"), and, for the sole purpose of
covering over-allotments in connection with the sale of the Firm Shares, at the
option of the Underwriter, up to an additional 235,200 Common Shares (the
"Additional Shares"). The Firm Shares and any Additional Shares purchased by the
Underwriter are referred to herein as the "Shares." The Underwriter intends to
conduct a public offering of the Shares (the "Offering").
1. Representations and Warranties of the Company. The Company represents
and warrants to, and agrees with, the Underwriter as of the date hereof and as
of the Closing Date and each Additional Closing Date (each as defined in Section
2 below) that:
(a) A registration statement on Form S-3 (File No. [333-87242]), with
respect to the Shares, including a prospectus, has been prepared by the Company
in conformity with the requirements of the Securities Act of 1933, as amended
(the "Securities Act"), and the rules and regulations (the "Rules and
Regulations") of the Securities and Exchange Commission (the "Commission"), has
been filed with the Commission and has been declared effective. The registration
statement and prospectus may have been amended or supplemented prior to the date
of this Agreement; any such amendment or supplement was prepared and filed, and
any such amendment, filed after the effective date of such registration
statement has been declared effective. No stop order suspending the
effectiveness of the registration statement has been issued, and no proceeding
for that purpose has been instituted or threatened by the Commission. A
prospectus supplement (the "Prospectus Supplement") setting forth the terms of
the offering, sale and plan of distribution of the Shares and additional
information concerning the Company and its business has been or will be prepared
and, together with the prospectus included in the registration statement, will
be filed pursuant to Rule 424(b) of the Rules and Regulations on or before the
second business day after the date hereof (or such earlier time as may be
required by the Rules and Regulations). The registration statement, as it may
have heretofore been amended and at the time it became effective, is referred to
herein as the "Registration Statement," and the final form of prospectus
included in the Registration Statement, as supplemented by the Prospectus
Supplement, in the form filed by the Company with the Commission pursuant to
Rule 424(b) under the Securities Act Rules and Regulations, is referred to
herein as the "Prospectus." Any Registration Statement filed by the Company
pursuant to Rule 462(b) of the Securities Act is hereinafter called the "Rule
462(b) Registration Statement" and from and after the date and time of filing
the Rule 462(b) Registration Statement, the term "Registration Statement" shall
include the Rule 462(b) Registration Statement. Copies of the Registration
Statement and the Prospectus, any amendments or supplements thereto and all
documents incorporated by reference therein that were filed with the Commission
on or prior to the date of this Agreement (including one fully executed copy of
the Registration Statement and of each amendment thereto) have been delivered to
the Underwriter and their counsel. Any preliminary prospectus or prospectus
subject to completion included in the Registration Statement or filed with the
Commission pursuant to Rule 424 under the Securities Act and the Rules and
Regulations is hereafter called a "Preliminary Prospectus." Any reference herein
to the Registration Statement, any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 which were filed under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), on or before the
effective date of the Registration Statement, the date of such Preliminary
Prospectus or the date of the Prospectus, as the case may be, and any reference
herein to the terms "amend," "amendment" or "supplement" with respect to the
Registration Statement, any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include (i) the filing of any document under the Exchange
Act after the effective date of the Registration Statement, the date of such
Preliminary Prospectus or the date of the Prospectus, as the case may be, which
is incorporated therein by reference and (ii) any such document so filed. For
purposes of this Agreement, all references to the Registration Statement, the
Prospectus, any Preliminary Prospectus or to any amendment or supplement thereto
shall be deemed to include any copy filed with the Electronic Data Gathering
Analysis and Retrieval System (EDGAR), and such copy shall be identical in
content to any Prospectus delivered to the Underwriter for use in connection
with the Offering.
(b) Each part of the Registration Statement, when such part became or
becomes effective, and at the date of the filing of the Company's most recent
Annual Report on form 10-K, and the Prospectus and any amendment or supplement
thereto, on the date of filing thereof with the Commission and at the Closing
Date (as hereinafter defined) and, if later, at any Additional Closing Date (as
hereinafter defined), conformed or will conform in all material respects with
the requirements of the Securities Act and the Securities Act Rules and
Regulations; each part of the Registration Statement, when such part became or
becomes effective, or when such part was filed with the Commission, or at the
date of the filing of the Company's most recent Annual Report on form 10-K, did
not or will not contain an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading; the Prospectus and any amendment or
supplement thereto, on the date of the filing thereof with the Commission and at
the Closing Date and, if later, at any Additional Closing Date, did not or will
not include an untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading. When any related Preliminary
Prospectus was first filed with the Commission (whether filed as part of the
registration statement for the registration of the Shares or any amendment
thereto or pursuant to Rule 424(a) under the Securities Act) and when any
amendment thereof or supplement thereto was first filed with the Commission,
such Preliminary Prospectus and any amendments thereof and supplements thereto
complied in all material respects with the applicable provisions of the
Securities Act, the Exchange Act and the Rules and Regulations and did not
contain an untrue statement of a material fact and did not omit to state any
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading. No representation and warranty is made in this subsection (b)
however, with respect to any information contained in or omitted from the
Registration Statement or the Prospectus or any related Preliminary Prospectus
or any amendment thereof or supplement thereto in reliance upon and in
conformity with information furnished in writing to the Company by or on behalf
of any Underwriter through you specifically for use therein. The parties
acknowledge and agree that such information provided on or on behalf of any
Underwriter consists solely of the material included in [paragraphs 6 and 9]
under the caption "Underwriting" in the Prospectus Supplement.
(c) The documents incorporated or deemed to be incorporated by
reference in the Prospectus, at the time they were or hereafter are filed with
the Commission, complied and will comply in all material respects with the
requirements of the Exchange Act and the Rules and Regulations, and, when read
together with the other information in the Prospectus, at the time the
Registration Statement and any amendments thereto become effective and at the
Closing Date, will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
(d) Ernst & Young LLP, who have certified certain of the financial
statements and supporting schedules and information incorporated by reference in
the Registration Statement are and, during the periods covered by their reports
incorporated by reference in the Registration Statement, were independent public
accountants as required by the Securities Act, the Exchange Act and the Rules
and Regulations. KPMG LLP, who have certified certain of the financial
statements and supporting schedules and information incorporated by reference in
the Registration Statement are and, during the periods covered by their reports
incorporated by reference in the Registration Statement, were independent public
accountants as required by the Securities Act, the Exchange Act and the Rules
and Regulations. Neither Ernst & Young LLP nor KPMG LLP have notified the
Company, the Company's board of trustees or the audit committee of the board of
trustees of any illegal acts that are required to be reported pursuant to
Section 10A of the Exchange Act.
(e) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as set forth in
the Registration Statement and the Prospectus, (A) there has been no change in
the earnings, assets, properties, business, results of operations, shareholders'
equity, prospects, affairs or condition (financial or otherwise) of the Company
and each subsidiary of the Company listed on Exhibit A hereto (the
"Subsidiaries"), taken as a whole, which has had or would reasonably be expected
to have a Material Adverse Effect (as defined in Section 1(j) below), (B) there
has been no casualty, loss, condemnation or other adverse event with respect to
any property or interest therein owned, directly or indirectly, by the Company
or any Subsidiary which has had or would reasonably be expected to have a
Material Adverse Effect, (C) there have been no transactions entered into by the
Company or any Subsidiary, other than those in the ordinary course of business,
which are material with respect to the Company and the Subsidiaries taken as a
whole, (D) except for regular quarterly distributions on the Common Shares and
Series A Preferred Shares which have been publicly announced through the date of
this Agreement, there has been no dividend or distribution of any kind declared,
paid or made by the Company on any class of its capital stock, and (E) there has
been no material increase in long-term debt or decrease in the capital of the
Company or the Subsidiaries, taken as a whole, other than in the ordinary course
of their businesses (each, a "Material Adverse Change"). Since the date of the
latest balance sheet presented in the Registration Statement and the Prospectus,
neither the Company nor any of the Subsidiaries has incurred or undertaken any
liabilities or obligations, direct or contingent, or entered into any
transactions which are material to the Company and the Subsidiaries, taken as a
whole, except for liabilities, obligations and transactions which are reflected
in the Registration Statement and the Prospectus.
(f) This Agreement and the transactions contemplated by this
Agreement, the Registration Statement and the Prospectus have been duly and
validly authorized by the Company and this Agreement has been duly and validly
executed and delivered by the Company.
(g) The execution, delivery, and performance of this Agreement and the
consummation of the transactions contemplated by this Agreement, the
Registration Statement and the Prospectus do not and will not (i) conflict with,
require consent under or result in a breach of any of the terms and provisions
of, or constitute a default (or an event which with notice or lapse of time, or
both, would constitute a default) under, or result in the creation or imposition
of any lien, charge or encumbrance upon any property or assets of the Company or
any of the Subsidiaries pursuant to, any indenture, mortgage, deed of trust,
loan agreement or other agreement, instrument, franchise, license or permit to
which the Company or any of the Subsidiaries is a party or by which the Company
or any of the Subsidiaries or their respective properties, operations or assets
may be bound or (ii) violate or conflict with any provision of the declaration
of trust, certificate or articles of incorporation, by-laws, certificate of
formation, limited liability company agreement, partnership agreement or any
other organizational document of the Company or any of the Subsidiaries or any
judgment, decree, order, statute, rule or regulation of any court or any public,
governmental or regulatory agency or body, domestic or foreign, having
jurisdiction over the Company or any of the Subsidiaries or any of their
respective properties, operations or assets. No consent, approval,
authorization, order, registration, filing, qualification, license or permit of
or with any court or any public, governmental or regulatory agency or body,
domestic or foreign, having jurisdiction over the Company or any of the
Subsidiaries or any of their respective properties, operations or assets, or any
third party, is required for the execution, delivery and performance of this
Agreement or the consummation of the transactions contemplated by this
Agreement, the Registration Statement and the Prospectus, including the
issuance, sale and delivery of the Shares to be issued, sold and delivered
hereunder, except the registration under the Securities Act of the Shares and
such consents, approvals, authorizations, orders, registrations, filings,
qualifications, licenses and permits as may be required under state securities
or Blue Sky laws in connection with the purchase and distribution of the Shares
by the Underwriter, each of which has been obtained.
(h) The authorized, issued and outstanding capital stock of the
Company is as set forth in the Prospectus in the column entitled "Actual" under
the caption "Capitalization" and, after giving effect to the Offering and the
other transactions contemplated by this Agreement, the Registration Statement
and the Prospectus, will be as set forth in the column entitled "As Adjusted"
under the caption "Capitalization." All of the issued and outstanding shares of
capital stock of the Company have been duly and validly authorized and issued,
are fully paid and non-assessable and were not issued in violation of or subject
to any preemptive or similar rights that entitle or will entitle any person to
acquire from the Company or any Subsidiary upon the issuance or sale thereof any
Common Shares, Preferred shares, any other equity security of the Company or any
Subsidiaries and any security convertible into, or exercisable or exchangeable
for, any Common Shares, Preferred shares or other such equity security (any
"Relevant Security"), except for such rights as may have been fully satisfied or
waived prior to the effectiveness of the Registration Statement. The Shares to
be delivered on the Closing Date and the Additional Closing Date, if any (as
hereinafter respectively defined), have been duly and validly authorized for
issuance and sale pursuant to this Agreement and, when delivered in accordance
with this Agreement, will be duly and validly issued, fully paid and
non-assessable and will not have been issued in violation of or subject to any
preemptive or similar rights that entitle or will entitle any person to acquire
any Relevant Security from the Company or any Subsidiary upon issuance or sale
of Shares in the Offering. The Common Shares, Preferred shares, the Firm Shares
and the Additional Shares conform to the descriptions thereof contained in the
Registration Statement and the Prospectus. Except as disclosed in or
specifically contemplated by the Prospectus, neither the Company nor any
Subsidiary has outstanding options to purchase, or any preemptive rights or
other rights to subscribe for or to purchase, or any contracts or commitments to
issue or sell, any Relevant Security.
(i) The Subsidiaries listed on Exhibit A hereto are the only
subsidiaries of the Company within the meaning of Rule 405 under the Securities
Act. Except for the Subsidiaries and EPR-Atlantic I, a Delaware general
partnership (in which the Company owns a 20% interest), the Company owns no
ownership or other beneficial interest, directly or indirectly, in any
corporation, partnership, joint venture or other business entity. All of the
issued shares of capital stock of or other ownership interest in each of the
Subsidiaries have been duly and validly authorized and issued and are fully paid
and non-assessable and, except as set forth on Exhibit A hereto, are owned
directly or indirectly by the Company free and clear of all liens, encumbrances,
equities or claims.
(j) Each of the Company and the Subsidiaries has been duly organized
and validly exists as a real estate investment trust, corporation, partnership
or limited liability company in good standing under the laws of its jurisdiction
of organization. Each of the Company and the Subsidiaries is duly qualified to
do business and is in good standing as a foreign trust, corporation, partnership
or limited liability company in each jurisdiction in which the character or
location of its properties (owned, leased or licensed) or the nature or conduct
of its business makes such qualification necessary, except for those failures to
be so qualified or in good standing which could not reasonably be expected to
(individually or when aggregated with other such instances) have a material
adverse effect on (i) the earnings, assets, business, condition (financial or
otherwise), results of operations, stockholders' equity, properties, affairs or
prospects of the Company and the Subsidiaries, taken as a whole; (ii) the
long-term debt or capital stock of the Company or any of its Subsidiaries; or
(iii) the Offering or consummation of any of the other transactions contemplated
by this Agreement, the Registration Statement and the Prospectus (a "Material
Adverse Effect"). Each of the Company and the Subsidiaries has all requisite
power and authority, and all necessary consents, approvals, authorizations,
orders, registrations, qualifications, licenses and permits (collectively, the
"Consents") of and from all public, regulatory or governmental agencies and
bodies and third parties, foreign and domestic, to own, hold, lease and operate
its properties and conduct its business as it is now being conducted and as
described in the Registration Statement and the Prospectus, and each such
Consent is valid and in full force and effect, and neither the Company nor any
of the Subsidiaries has received notice of any investigation or proceedings
which results in the revocation of any such Consent. Each of the Company and the
Subsidiaries is in compliance with all applicable laws, rules, regulations,
ordinances and directives, except where failure to be in compliance could not
reasonably be expected to have a Material Adverse Effect. No Consent contains a
materially burdensome restriction not adequately disclosed in the Registration
Statement and the Prospectus. Neither the Company nor any Subsidiary is in
violation of its declaration of trust, certificate or articles of incorporation,
by-laws, certificate of formation, limited liability company agreement,
partnership agreement or any other organizational document. The Company and
Subsidiaries are not in default under any indenture, mortgage, deed of trust,
voting trust agreement, loan agreement, bond, debenture, note agreement or
evidence of indebtedness, lease, contract or other agreement or instrument to
which they are a party or by which they or any of their properties or other
assets are bound, violation of which would individually or in the aggregate have
a Material Adverse Effect, and no other party under any such agreement or
instrument to which the Company or the Subsidiaries are a party is, to the
knowledge of the Company, in default in any material respect thereunder. To the
knowledge of the Company, no liability (financial or otherwise) exists for the
Company or the Subsidiaries, except for those liabilities which would not have a
Material Adverse Effect.
(k) Except as described in the Prospectus, there is no legal,
governmental or regulatory proceeding or other litigation (including but not
limited to routine litigation) to which the Company or any of the Subsidiaries
is a party or of which any property or operations of the Company or any of the
Subsidiaries is the subject which, individually or in the aggregate, if
determined adversely to the Company or any of the Subsidiaries, could reasonably
be expected to have a Material Adverse Effect; to the best of the Company's
knowledge, no such proceeding or litigation is threatened or contemplated by any
legal, governmental or regulatory authority or other third party, foreign or
domestic; and the defense of all such proceedings and litigation against or
involving the Company or any of the Subsidiaries could not reasonably be
expected to have a Material Adverse Effect.
(l) The consolidated financial statements of the Company, including
the notes thereto, and the supporting schedule incorporated by reference in the
Registration Statement and the Prospectus present fairly the financial position
as of the dates indicated and the results of operations, changes in
shareholders' equity and cash flows for the periods therein specified of the
Company and its consolidated Subsidiaries; except as otherwise stated in the
Registration Statement, said financial statements have been prepared in
conformity with generally accepted accounting principles applied on a consistent
basis throughout the periods involved and present fairly the information
required to be stated therein. The other financial and statistical information
and data included in the Registration Statement and the Prospectus present
fairly the information included therein and (with the exception of Funds from
Operations, a non-GAAP financial measure, as disclosed in the Company's Exchange
Act reports) have been prepared on a basis consistent with that of the financial
statements that are incorporated by reference in the Registration Statement and
the Prospectus and the books and records of the respective entities presented
therein.
(m) There are no pro forma or as adjusted financial statements which
are required to be included in the Registration Statement and Prospectus in
accordance with Regulation S-X.
(n) The statistical and market-related data included in the
Registration Statement and the Prospectus are based on or derived from sources
which the Company reasonably and in good faith believes are reliable and
accurate, and such data agree with the sources from which they are derived.
(o) There are no contracts or other documents (including, without
limitation, any voting agreement), which are required to be described in the
Registration Statement and the Prospectus or filed as exhibits to the
Registration Statement by the Securities Act, the Exchange Act or the Rules and
Regulations and which have not been so described or filed. All of the contracts
to which any of the Company or the Subsidiaries is a party and which are
material to the business and operations of the Company and the Subsidiaries,
taken as a whole, (i) have been duly authorized, executed and delivered by such
entity, constitute valid and binding agreements of such entity and are
enforceable against such entity in accordance with the terms thereof, except as
such enforcement may be limited by (A) bankruptcy, insolvency, reorganization or
similar other laws affecting creditors' rights generally and (B) general equity
principles and limitations on the availability of equitable relief, or (ii) in
the case of any contract to be executed on or before the Closing Date, will on
the Closing Date be duly authorized, executed and delivered by the Company
and/or a Subsidiary, and constitute valid and binding agreements of such entity
enforceable against each entity in accordance with the terms thereof, except as
such enforcement may be limited by (A) bankruptcy, insolvency, reorganization or
similar other laws affecting creditors' rights generally and (B) general equity
principles and limitations on the availability of equitable relief.
(p) The Common Shares are registered pursuant to Section 12(b) of the
Exchange Act and the outstanding Common Shares are listed on the Exchange (as
defined in Section 11(b) below) and the Company has taken no action designed to,
or likely to have the effect of, terminating the registration of the Common
Shares under the Exchange Act or de-listing the Common Shares from the Exchange,
nor has the Company received any notification that the Commission or the
Exchange is contemplating terminating such registration or listing. The Shares
have been approved for listing on the NYSE, subject to official notice of
issuance.
(q) Except as disclosed in the Registration Statement and the
Prospectus, no holder of securities of the Company has any registration or
similar rights to require registration of any debt or equity security of the
Company as part or on account of, or otherwise in connection with, the sale of
the Shares contemplated hereby, and any such rights so disclosed have either
been fully complied with by the Company or effectively waived by the holders
thereof, and any such waivers remain in full force and effect.
(r) Neither the Company nor any of its affiliates has taken, nor will
any of them take, directly or indirectly, any action resulting in a violation of
Regulation M under the Exchange Act, or is designed to cause or result in, or
which might reasonably be expected to constitute, cause or result in, the
stabilization or manipulation of the price of any security to facilitate the
sale or resale of the Shares. The Company has not distributed and, prior to the
Closing Date, will not distribute any offering material in connection with the
offering and sale of the Shares other than the Registration Statement, the
Prospectus or other materials, if any, permitted by the Securities Act.
(s) The Company has not prior to the date hereof offered or sold any
securities which would be "integrated" with the offer and sale of the Shares
pursuant to the Registration Statement. Except as described in the Registration
Statement and the Prospectus (and pursuant to the Company's dividend
reinvestment plan, as in effect on the date hereof), the Company has not sold or
issued any Relevant Security during the six-month period preceding the date of
the Prospectus, including but not limited to any sales pursuant to Rule 144A or
Regulation D or S under the Securities Act, other than Common Shares issued
pursuant to employee benefit plans, qualified stock option plans or the employee
compensation plans or pursuant to outstanding options, rights or warrants as
described in the Prospectus.
(t) No relationship, direct or indirect, exists between or among any
of the Company or any affiliate of the Company, on the one hand, and any
director, officer, stockholder, customer or supplier of the Company or any
affiliate of the Company, on the other hand, which is required by the Securities
Act, the Exchange Act or the Rules and Regulations to be described in the
Registration Statement or the Prospectus which is not so described or is not
described as required.
(u) The Company and its Subsidiaries maintain a system of internal
accounting controls sufficient to provide reasonable assurances that (i)
transactions are executed in accordance with management's general or specific
authorizations, (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain accountability for assets, (iii) access to
assets is permitted only in accordance with management's general or specific
authorization and (iv) the recorded accounting for assets is compared with
existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(v) The conditions for use of Form S-3, as set forth in the General
Instructions thereto, have been satisfied. During the period of at least the
last 24 calendar months prior to the date of this Agreement, the Company has
timely filed with the Commission all documents and other material required to be
filed pursuant to Sections 13, 14 and 15(d) under the Exchange Act. During the
period of at least the last 36 calendar months preceding the filing of the
Registration Statement, the Company has filed all reports required to be filed
pursuant to Sections 13, 14 and 15(d) under the Exchange Act. Immediately
preceding the filing of the Registration Statement, the aggregate market value
of the Company's voting stock held by non-affiliates of the Company was equal to
or greater than $150 million.
(w) Each of the Company and the Subsidiaries is not and, at all times
up to and including consummation of the transactions contemplated by this
Agreement, the Registration Statement and the Prospectus, and after giving
effect to the application of the net proceeds of the Offering, will not be,
subject to registration as an "investment company" under the Investment Company
Act of 1940, as amended (the "'40 Act"), and is not and will not be an entity
"controlled" by an "investment company" within the meaning of such act.
(x) The Company and the Subsidiaries have good and marketable title in
fee simple to, or a valid and enforceable ground leasehold interest in, all real
property and good and marketable title to all personal property owned by them,
in each case free and clear of all liens, encumbrances and defects except such
as are described in the Registration Statement and the Prospectus or such as do
not (individually or in the aggregate) materially affect the value of such
property or interfere with the use made or proposed to be made of such property
by the Company and the Subsidiaries; and any real property and buildings held
under lease or sublease by the Company and the Subsidiaries are held by them
under valid, subsisting and enforceable leases with such exceptions as are not
material and do not interfere with the use made and proposed to be made of such
property and buildings by the Company and the Subsidiaries. Neither the Company
nor any of the Subsidiaries has received any notice of any claim adverse to its
ownership of any real or personal property or of any claim against the continued
possession of any real property, whether owned or held under lease or sublease
by the Company or any of the Subsidiaries. All liens, charges, encumbrances,
claims or restrictions on or affecting any of the properties or the assets of
the Company and the Subsidiaries which are required to be disclosed in the
Prospectus are disclosed therein. The use and occupancy of each of the
properties of the Company and the Subsidiaries comply in all material respects
with all applicable codes and zoning laws and regulations. The Company and the
Subsidiaries have no knowledge of any pending or threatened condemnation or
zoning change that will in any material respect affect the size of, use of,
improvement of, construction on, or access to any of the properties of the
Company or the Subsidiaries. The Company and the Subsidiaries have no knowledge
of any pending or threatened proceeding or action that will in any manner
materially affect the size of, use of, improvements or construction on, or
access to any of the properties of the Company or the Subsidiaries.
(y) The Company and each of the Subsidiaries owns or possesses
adequate right to use all patents, patent applications, trademarks, service
marks, trade names, trademark registrations, service mark registrations,
copyrights, licenses, formulae, customer lists, and know-how and other
intellectual property (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or procedures)
necessary for the conduct of their respective businesses as being conducted and
as described in the Registration Statement and Prospectus and have no reason to
believe that the conduct of their respective businesses does or will conflict
with, and have not received any notice of any claim of conflict with, any such
right of others. To the best of the Company's knowledge, all material technical
information developed by and belonging to the Company which has not been
patented has been kept confidential. Neither the Company nor any of its
Subsidiaries has granted or assigned to any other person or entity any right to
manufacture, have manufactured, assemble or sell the current products and
services of the Company or those products and services described in the
Registration Statement and Prospectus. There is no infringement by third parties
of any such Intellectual Property; there is no pending or, to the Company's
knowledge, threatened action, suit, proceeding or claim by others challenging
the Company's or any Subsidiary's rights in or to any such Intellectual
Property, and the Company is unaware of any facts which would form a reasonable
basis for any such claim; and there is no pending or, to the Company's
knowledge, threatened action, suit, proceeding or claim by others that the
Company infringes or otherwise violates any patent, trademark, copyright, trade
secret or other proprietary rights of others, and the Company is unaware of any
other fact which would form a reasonable basis for any such claim.
(z) Each of the Company and the Subsidiaries has accurately prepared
and timely filed all federal, state and other tax returns that are required to
be filed by it and has paid or made provision for the payment of all taxes,
assessments, governmental or other similar charges, including without
limitation, all sales and use taxes and all taxes which the Company and each of
the Subsidiaries is obligated to withhold from amounts owning to employees,
creditors and third parties, with respect to the periods covered by such tax
returns (whether or not such amounts are shown as due on any tax return). No
deficiency assessment with respect to a proposed adjustment of the Company's or
any of the Subsidiaries' Federal, state, or other taxes is pending or, to the
best of the Company's knowledge, threatened. There is no tax lien, whether
imposed by any federal, state or other taxing authority, outstanding against the
assets, properties or business of the Company or any of the Subsidiaries. To the
knowledge of the Company, there are no tax returns of the Company or any of the
Subsidiaries that are currently being audited by state, local or Federal taxing
authorities or agencies which would have a Material Adverse Effect.
(aa) Neither the Company, any of the Subsidiaries nor, to the
Company's knowledge, any of its employees or agents has at any time during the
last five years (i) made, on behalf of the Company, any unlawful contribution to
any candidate for foreign office, or failed to disclose fully any contribution
in violation of law or (ii) made any payment to any federal or state
governmental officer or official, or other person charged with similar public or
quasi-public duties, other than payments required or permitted by the laws of
the United States of any jurisdiction thereof.
(bb) No labor disturbance by the employees of the Company or any of
the Subsidiaries exists or, to the best of the Company's knowledge, is imminent
and the Company is not aware of any existing or imminent labor disturbance by
the employees of any of its or any Subsidiary's principal suppliers,
manufacturers', customers or contractors, which, in either case, could
reasonably be expected to have a Material Adverse Effect.
(cc) No "prohibited transaction" (as defined in Section 406 of the
Employee Retirement Income Security Act of 1974, as amended, including the
regulations and published interpretations thereunder ("ERISA"), or Section 4975
of the Internal Revenue Code of 1986, as amended from time to time (the "Code"),
or "accumulated funding deficiency" (as defined in Section 302 of ERISA) or any
of the events set forth in Section 4043(b) of ERISA (other than events with
respect to which the 30-day notice requirement under Section 4043 of ERISA has
been waived) has occurred with respect to any employee benefit plan which could
reasonably be expected to have a Material Adverse Effect; each employee benefit
plan is in compliance in all material respects with applicable law; including
ERISA and the Code; the Company has not incurred and does not expect to incur
liability under Title IV of ERISA with respect to the termination of, or
withdrawal from any "pension plan"; and each "pension plan" (as defined in
ERISA) for which the Company would have any liability that is intended to be
qualified under Section 401(a) of the Code is so qualified in all material
respects and nothing has occurred, whether by action or by failure to act, which
could cause the loss of such qualification.
(dd) Except as would not, singularly or in the aggregate, have a
Material Adverse Effect, (i) to the Company's knowledge, there does not exist on
any of the properties described in the Prospectus any Hazardous Materials (as
hereinafter defined) in unlawful quantities, (ii) to the Company's knowledge,
there has not occurred on or off such properties any unlawful spills, releases,
discharges or disposal of Hazardous Materials, and (iii) the Company and the
Subsidiaries have not failed to comply with all applicable local, state and
Federal environmental laws, regulations, ordinances and administrative and
judicial orders relating to the generation, recycling, sale, storage, handling,
transport and disposal of any Hazardous Materials.
As used herein, "Hazardous Material" shall include, without
limitation, any flammable explosives, radioactive materials, oil, petroleum,
petroleum products, hazardous materials, hazardous wastes, hazardous or toxic
substances, asbestos or any material as defined by any environmental laws,
including, without limitation, the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended (42 U.S.C. Section 9601, et
seq.) (CERCLA), the Hazardous Materials Transportation Act, as amended (49
U.S.C. Section 1801, et seq.), the Resource Conservation and Recovery Act, as
amended (42 U.S.C. Section 6901, et seq.), and in the regulations adopted
pursuant to each of the foregoing or by any Federal, state or local governmental
authority having jurisdiction over the properties as described in the
Prospectus.
All of the properties of the Company and the Subsidiaries have been,
and it is contemplated that all future acquisitions will be, subjected to a
Phase I or similar environmental assessment (which generally includes a site
inspection, interviews and a records review, but no subsurface sampling). These
assessments and follow-up investigations, if any, of the properties (including,
as appropriate, asbestos, radon and lead surveys, additional public record
review, subsurface sampling and other testing), of the properties have not
revealed any environmental liability that the Company believes would have a
Material Adverse Effect. The Company has not agreed to assume, undertake or
provide indemnification (except as may extend to lenders to the Company who
finance the acquisition of real property or the refinancing thereof) for any
liability of any other person under any environmental law, including any
obligation for cleanup or remedial action, except as could not reasonably be
expected to have a Material Adverse Effect.
(ee) Commencing with the Company's taxable year ended December 31,
1997, the Company has been, and upon the sale of the Shares will continue to be,
organized and operated in conformity with the requirements for qualification and
taxation as a "real estate investment trust" (a "REIT") under Sections 856
through 860 of the Internal Revenue Code of 1986, as amended (the "Code"). The
proposed method of operation of the Company as described in the Prospectus will
enable the Company to continue to operate in a manner which would permit it to
qualify as a REIT under the Code. The Company has no present intention of
changing its operations or engaging in activities which would cause it to fail
to qualify, or make economically undesirable its continued qualification, as a
REIT.
(ff) Title insurance in favor of the Company and the Subsidiaries is
maintained with respect to each of the properties described in the Prospectus in
an amount at least equal to the cost of acquisition of such property.
(gg) Except as disclosed in the Registration Statement, the Prospectus
and any amendment or supplement thereto, there are no mortgages or deeds of
trust encumbering any of the properties described in the Prospectus. The
mortgages encumbering the properties are not convertible into any equity
securities of the Company, nor does the Company or any of the Subsidiaries hold
a participating interest therein and, except as disclosed in the Registration
Statement, the Prospectus and any amendment or supplement thereto, such
mortgages are not cross defaulted or cross-collateralized to any party other
than the Company and the Subsidiaries.
(hh) The Company has and maintains, or its tenants have and maintain,
property and casualty insurance in favor of the Company and the Subsidiaries
with respect to such entities and each of the properties owned, directly or
indirectly, by the Company, in an amount and on such terms as is reasonable and
customary for the businesses of the type proposed to be conducted by the Company
and the Subsidiaries. Neither the Company nor any of the Subsidiaries has
received from any insurance company written notice of any material defects or
deficiencies affecting the insurability of any such properties.
(ii) Except as otherwise disclosed in the Prospectus, there are no
material outstanding loans or advances or material guarantees of indebtedness by
the Company or any of the Subsidiaries to or for the benefit of any of the
officers, trustees or directors of the Company or any of the Subsidiaries or any
of the members of the families of any of them.
(jj) To the knowledge of the Company, each of the properties described
in the Prospectus is in compliance with all presently applicable provisions of
the Americans with Disabilities Act, except for any failures to comply which
would not, singly or in the aggregate, result in a Material Adverse Effect.
(kk) The Company has not incurred any liability for any finder's fees
or similar payments in connection with the transactions herein contemplated
except as may otherwise exist with respect to the Underwriter pursuant to this
Agreement.
Any certificate signed by or on behalf of the Company and delivered to
the Underwriter or to counsel for the Underwriter shall be deemed to be a
representation and warranty by the Company to the Underwriter as to the matters
covered thereby.
2. Purchase, Sale and Delivery of the Shares.
(a) On the basis of the representations, warranties, covenants and
agreements herein contained, but subject to the terms and conditions herein set
forth, the Company agrees to sell to the Underwriter and the Underwriter, agrees
to purchase from the Company, at a purchase price per share of $30.70, the Firm
Shares.
(b) Payment of the purchase price for, and delivery of certificates
representing, the Firm Shares shall be made at the office of Clifford Chance US
LLP, 200 Park Avenue, New York, New York 10166 ("Underwriter's Counsel"), or at
such other place as shall be agreed upon by the Underwriter and the Company, at
10:00 A.M., New York City time, on the fourth business day (as permitted under
Rule 15c6-1 under the Exchange Act) (unless postponed in accordance with the
provisions of Section 9 hereof) following the effective date of this Agreement
or such other time not later than ten business days after such date as shall be
agreed upon by the Underwriter and the Company (such time and date of payment
and delivery being herein called the "Closing Date").
Payment of the purchase price for the Firm Shares shall be made by
wire transfer in same day funds to the Company at the bank account designated in
writing by the Company at least one business day prior to the Closing Date, upon
delivery of the Firm Shares to the Underwriter through the facilities of The
Depository Trust Company for the account of the Underwriter. Certificates for
the Firm Shares shall be registered in such name or names and shall be in such
denominations as the Underwriter may request at least two business days before
the Closing Date. The Company will permit the Underwriter to examine and package
such certificates for delivery at least one full business day prior to the
Closing Date.
(c) In addition, on the basis of the representations, warranties,
covenants and agreements herein contained, but subject to the terms and
conditions herein set forth, the Company hereby grants to the Underwriter, the
option to purchase up to 235,200 Additional Shares at the same purchase price
per share to be paid by the Underwriter for the Firm Shares as set forth in this
Section 2, for the sole purpose of covering over-allotments in the sale of Firm
Shares by the Underwriter. This option may be exercised at any time and from
time to time, in whole or in part on one or more occasions, on or before the
thirtieth day following the date of the Prospectus Supplement, by written notice
by the Underwriter to the Company. Such notice shall set forth the aggregate
number of Additional Shares as to which the option is being exercised and the
date and time, as reasonably determined by the Underwriter, when the Additional
Shares are to be delivered (any such date and time being herein sometimes
referred to as the "Additional Closing Date"); provided, however, that the
Additional Closing Date shall not be earlier than the Closing Date or earlier
than the second full business day after the date on which the option shall have
been exercised nor later than the eighth full business day after the date on
which the option shall have been exercised.
(d) Payment of the purchase price for, and delivery of certificates
representing, the Additional Shares shall be made at the office of Underwriter's
Counsel, or at such other place as shall be agreed upon by the Underwriter and
the Company, at 10:00 A.M., New York City time, on the Additional Closing Date,
or such other time as shall be agreed upon by the Underwriter and the Company.
Payment of the purchase price for the Additional Shares shall be made
by wire transfer in same day funds to the Company at the bank account designated
in writing by the Company at least one business day prior to the Additional
Closing Date upon delivery of certificates for the Additional Shares to the
Underwriter through the facilities of The Depository Trust Company for the
respective accounts of the Underwriter. The Additional Shares shall be
registered in such name or names and shall be in such denominations as the
Underwriter may request at least two business days before the Additional Closing
Date. The Company will permit the Underwriter to examine and package such
certificates for delivery at least one full business day prior to the Additional
Closing Date.
3. Offering. Upon authorization of the release of the Firm Shares by the
Underwriter, the Underwriter proposes to offer the Shares for sale to the public
upon the terms and conditions set forth in the Prospectus Supplement.
4. Covenants of the Company. The Company covenants and agrees with the
Underwriter that:
(a) The Company will cause the Prospectus Supplement to be filed as
required by Section 1(a) hereof (but only if the Underwriter or Underwriter's
Counsel have not reasonably objected thereto by notice to the Company after
having been furnished a copy a reasonable time prior to filing) and will notify
the Underwriter promptly of such filing. During the period in which a prospectus
relating to the Shares is required to be delivered under the Securities Act or
such date which is 90 days after the Closing Date, whichever is later, the
Company will notify the Underwriter promptly of the time when any subsequent
amendment to the Registration Statement has become effective or any subsequent
supplement to the Prospectus has been filed, or of any request by the Commission
for any amendment or supplement to the Registration Statement or the Prospectus
or for additional information. The Company will prepare and file with the
Commission, promptly upon the Underwriter's request, any amendments or
supplements to the Registration Statement or the Prospectus that, in the
Underwriter's opinion, may be necessary or advisable in connection with the
Underwriter's distribution of the Shares; and the Company will file no amendment
or supplement to the Registration Statement or the Prospectus (other than any
prospectus supplement relating to the offering of other securities registered
under the Registration Statement or any document required to be filed under the
Exchange Act that upon filing is deemed to be incorporated by reference therein)
to which the Underwriter or Underwriter's Counsel shall reasonably object by
notice to the Company after having been furnished a copy a reasonable time prior
to the filing.
(b) The Company will advise the Underwriter, promptly after it shall
receive notice or obtain knowledge thereof, of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration Statement, of
the suspension of the qualification or registration of the Shares for offering
or sale in any jurisdiction, or of the initiation or threatening of any
proceeding for any such purpose; and it will promptly use its best efforts to
prevent the issuance of any stop order or to obtain its withdrawal if such a
stop order should be issued.
(c) The Company shall comply with the Securities Act, the Exchange Act
and the Rules and Regulations to permit completion of the distribution as
contemplated in this Agreement, the Registration Statement and the Prospectus.
If at any time when a prospectus relating to the Shares is required to be
delivered under the Securities Act or the Exchange Act in connection with the
sales of Shares, any event shall have occurred as a result of which the
Prospectus as then amended or supplemented would, in the judgment of the
Underwriter or the Company, include an untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances existing at the
time of delivery to the purchaser, not misleading, or if to comply with the
Securities Act, the Exchange Act or the Rules and Regulations it shall be
necessary at any time to amend or supplement the Prospectus or Registration
Statement, or to file any document incorporated by reference in the Registration
Statement or the Prospectus or in any amendment thereof or supplement thereto,
the Company will notify you promptly and prepare and file with the Commission
(at the expense of the Company) an appropriate amendment or supplement (in form
and substance satisfactory to the Underwriter) which will correct such statement
or omission or which will effect such compliance and will use its best efforts
to have any amendment to the Registration Statement declared effective as soon
as possible.
(d) The Company will promptly deliver to each of you and Underwriter's
Counsel a signed copy of the Registration Statement, as initially filed and all
amendments thereto, including all consents and exhibits filed therewith, and
will maintain in the Company's files manually signed copies of such documents
for at least five years after the date of filing. The Company will promptly
deliver to the Underwriter such number of copies of any Preliminary Prospectus,
the Prospectus, the Registration Statement, and all amendments of and
supplements to such documents, if any, and all documents incorporated by
reference in the Registration Statement and Prospectus or any amendment thereof
or supplement thereto, as you may reasonably request. Prior to 10:00 A.M., New
York time, on the business day next succeeding the date of this Agreement and
from time to time thereafter, the Company will furnish the Underwriter with
copies of the Prospectus in New York City in such quantities as you may
reasonably request.
(e) The Company will make generally available to its security holders
and to the Underwriter as soon as practicable, but in any event not later than
the end of the fiscal quarter first occurring after the first anniversary of the
date that the Prospectus Supplement is filed pursuant to Rule 424(b) under the
Securities Act, an earnings statement of the Company and the Subsidiaries (which
need not be audited) complying with Section 11(a) of the Securities Act and the
Rules and Regulations (including, at the option of the Company, Rule 158)
covering a period of twelve months beginning on the date that the Prospectus
Supplement is filed pursuant to Rule 424(b) under the Securities Act.
(f) During the period of five years from the date the Prospectus
Supplement is filed pursuant to Rule 424(b) under the Securities Act, the
Company will furnish to you copies of all reports or other communications
(financial or other) furnished to security holders or from time to time
published or publicly disseminated by the Company, and will deliver to you (i)
as soon as they are available, copies of any reports, financial statements and
proxy or information statements furnished to or filed with the Commission or any
national securities exchange on which any class of securities of the Company is
listed; and (ii) such additional information concerning the business and
financial condition of the Company as you may from time to time reasonably
request (such financial information to be on a consolidated basis to the extent
the accounts of the Company and the Subsidiaries are consolidated in reports
furnished to its security holders generally or to the Commission).
(g) The Company will apply the net proceeds from the sale of the
Shares as set forth under the caption "Use of Proceeds" in the Prospectus.
(h) The Company will use its best efforts to list the Shares, subject
to official notice of issuance, on the Exchange and maintain the listing of the
Shares on the Exchange.
(i) The Company, during the period when the Prospectus is required to
be delivered under the Securities Act or the Exchange Act, will file all
documents required to be filed with the Commission pursuant to the Securities
Act, the Exchange Act and the Rules and Regulations within the time periods
required thereby.
(j) The Company will not at any time, directly or indirectly, take any
action designed to, or which might reasonably be expected to, cause or result
in, or which has constituted or which might reasonably be expected to
constitute, a violation of Regulation M under the Exchange Act, or the
stabilization of the price of its capital stock to facilitate the sale or resale
of any of the Shares.
(k) The Company will use its best efforts to continue to meet the
requirements to qualify as a REIT under the Code for each of its taxable years
for so long as the board of trustees deems it in the best interests of the
Company's stockholders to remain so qualified.
(l) The Company will not be or become, at any time prior to the
expiration of three years after the date of the Agreement, an "investment
company," as such term is defined in the '40 Act.
(m) The Company will maintain a transfer agent and, if necessary under
the jurisdiction of formation of the Company, a Registrar for its Common Shares
and Preferred shares.
(n) The Company will not sell, offer to sell, contract or agree to
sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of
or agree to dispose of, directly or indirectly, any Common Shares or securities
convertible into or exchangeable or exercisable for Common Shares or warrants or
other rights to purchase Common Shares or any other securities of the Company
that are substantially similar to Common Shares, or file or cause to be declared
effective a registration statement under the Securities Act relating to the
offer and sale of any Common Shares or securities convertible into or
exercisable or exchangeable for Common Shares or other rights to purchase Common
Shares or any other securities of the Company that are substantially similar to
Common Shares for a period of 90 days after the date hereof (the "Lock-Up
Period"), without the prior written consent of the Underwriter, except for (i)
issuances of Common Shares upon the exercise of options or warrants disclosed as
outstanding in the Prospectus, and; (ii) the issuance of employee stock options
not exercisable during the Lock-Up Period pursuant to stock option plans
described in the Prospectus; (iii) the issuance of partnership interests in
connection with ordinary course property acquisitions that are exchangeable for
Common Shares; and (iv) the filing of a universal shelf registration statement
under Rule 415 of the Securities Act covering securities of the Company.
(o) The Company will use its best efforts to do and perform all things
required to be done or performed under this Agreement by the Company prior to
the Closing Date or the Additional Date, as the case may be, and to satisfy all
conditions precedent to the delivery of the Firm Shares and the Additional
Shares.
5. Payment of Expenses. Whether or not the transactions contemplated by
this Agreement, the Registration Statement and the Prospectus are consummated or
this Agreement is terminated, the Company hereby agrees to pay all costs and
expenses incident to the performance of its obligations hereunder, including the
following: (i) all expenses in connection with the preparation, printing and
filing of the Registration Statement, any Preliminary Prospectus and the
Prospectus and any and all amendments and supplements thereto and the mailing
and delivering of copies thereof to the Underwriter and dealers; (ii) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Shares under the Securities Act and the
Offering; (iii) the cost of producing this Agreement and any agreement among
underwriters, blue sky survey, closing documents and other instruments,
agreements or documents (including any compilations thereof) in connection with
the Offering; (iv) all expenses in connection with the qualification of the
Shares for offering and sale under state securities laws, if required, including
the fees and disbursements of counsel for the Underwriter in connection with
such qualification and in connection with any blue sky survey; (v) the filing
fees incident to, and the fees and disbursements of counsel for the Underwriter
in connection with, securing any required review by the NASD of the terms of the
Offering; (vi) all fees and expenses in connection with listing the Shares on
the Exchange; (vii) all travel expenses of the Company's officers and employees
and any other expense of the Company incurred in connection with attending or
hosting meetings with prospective purchasers of the Shares; and (viii) any stock
transfer taxes incurred in connection with this Agreement or the Offering. The
Company also will pay or cause to be paid: (x) the cost of preparing stock
certificates, if any, representing the Shares; (y) the cost and charges of any
transfer agent or registrar for the Shares; and (z) all other costs and expenses
incident to the performance of its obligations hereunder which are not otherwise
specifically provided for in this Section 5. It is understood, however, that
except as provided in this Section, and Sections 7, 8 and 11 hereof, the
Underwriter will pay all of its own costs and expenses, including the fees of
its counsel and stock transfer taxes on resale of any of the Shares by the
Underwriter. Notwithstanding anything to the contrary in this Section 5, in the
event that this Agreement is terminated pursuant to Section 6 or 11(b) hereof,
or subsequent to a Material Adverse Change, the Company will pay all out-of
pocket expenses of the Underwriter (including but not limited to fees and
disbursements of counsel to the Underwriter) incurred in connection herewith.
6. Conditions of Underwriter's Obligations. The obligation of the
Underwriter to purchase and pay for the Firm Shares and the Additional Shares,
as provided herein, shall be subject to the accuracy of the representations and
warranties of the Company herein contained, as of the date hereof and as of the
Closing Date (for purposes of this Section 6 "Closing Date" shall refer to the
Closing Date for the Firm Shares and any Additional Closing Date, if different,
for the Additional Shares), to the absence from any certificates, opinions,
written statements or letters furnished to you or to Underwriter's Counsel
pursuant to this Section 6 of any material misstatement or omission, to the
performance by the Company of its obligations hereunder, and to each of the
following additional conditions:
(a) The Registration Statement shall have become effective and all
necessary regulatory approvals shall have been received not later than 5:30
P.M., New York time, on the date of this Agreement, or at such later time and
date as shall have been consented to in writing by the Underwriter; the
Prospectus containing information relating to the description of the Shares and
the method of distribution and similar matters shall have been filed with the
Commission pursuant to Rule 424(b) in accordance with Section 4(a) hereof; and,
at or prior to the Closing Date no stop order suspending the effectiveness of
the Registration Statement or any post-effective amendment thereof shall have
been issued and no proceedings therefor shall have been initiated or threatened
by the Commission, nor has any state securities authority suspended the
qualification or registration of the Shares for offering or sale in any
jurisdiction and any request of the Commission for additional information (to be
included in the Registration Statement or the Prospectus or otherwise) shall
have been complied with to the satisfaction of the Underwriter and Underwriter's
Counsel.
(b) The Underwriter shall not have advised the Company that the
Registration Statement or any amendment thereto contains an untrue statement of
fact that in the opinion of the Underwriter or Underwriter's Counsel is material
or omits to state a fact that in the opinion of the Underwriter or its counsel
is material and is required to be stated therein or is necessary to make the
statements therein not misleading, or that the Prospectus, or any amendment or
supplement thereto, contains an untrue statement of fact that in the opinion of
the Underwriter or Underwriter's Counsel is material or omits to state a fact
that in the opinion of the Underwriter or Underwriter's Counsel is material and
is necessary, in the light of the circumstances under which they were made, to
make the statements therein not misleading.
(c) At the Closing Date you shall have received the favorable written
opinion of Sonnenschein Nath & Rosenthal LLP, counsel for the Company, dated the
Closing Date addressed to the Underwriter in the form attached hereto as Annex
I.
(d) All proceedings taken in connection with the sale of the Firm
Shares and the Additional Shares as herein contemplated shall be satisfactory in
form and substance to the Underwriter and to Underwriter's Counsel, and the
Underwriter shall have received from Underwriter's Counsel a favorable written
opinion, dated as of the Closing Date, with respect to the issuance and sale of
the Shares, the Registration Statement and the Prospectus and such other related
matters as the Underwriter may require, and the Company shall have furnished to
Underwriter's Counsel such documents as they may reasonably request for the
purpose of enabling them to pass upon such matters.
(e) At the Closing Date you shall have received a certificate of the
Chief Executive Officer and Chief Financial Officer of the Company, dated the
Closing Date to the effect that (i) the condition set forth in subsection (a) of
this Section 6 has been satisfied, (ii) as of the date hereof and as of the
Closing Date, the representations and warranties of the Company set forth in
Section 1 hereof are accurate, (iii) as of the Closing Date all agreements,
conditions and obligations of the Company to be performed or complied with
hereunder on or prior thereto have been duly performed or complied with, (iv)
the Company and the Subsidiaries have not sustained any material loss or
interference with their respective businesses or properties from fire, flood,
hurricane, accident or other calamity, whether or not covered by insurance, or
from any labor dispute or any legal or governmental proceeding, (v) no stop
order suspending the effectiveness of the Registration Statement or any
post-effective amendment thereof has been issued and no proceedings therefor
have been initiated or threatened by the Commission and (vi) subsequent to the
respective dates as of which information is given in the Registration Statement
and the Prospectus there has not been any Material Adverse Change or any
development involving a prospective Material Adverse Change, whether or not
arising from transactions in the ordinary course of business, in or affecting
(x) the business, condition (financial or otherwise), results of operations,
stockholders' equity, properties, affairs or prospects of the Company and the
Subsidiaries, taken as a whole; (y) the long-term debt or capital stock of the
Company or any of its Subsidiaries; or (z) the Offering or consummation of any
of the other transactions contemplated by this Agreement, the Registration
Statement and the Prospectus.
(f) (1) At the time this Agreement is executed and at the Closing
Date, you shall have received comfort letters from KPMG LLP, independent public
accountants for the Company, dated, as of the date of this Agreement and as of
the Closing Date addressed to the Underwriter and in form and substance
satisfactory to the Underwriter and Underwriter's Counsel; (2) at the Closing
Date, you shall have received a comfort letter from Ernst & Young LLP dated as
of the Closing Date addressed to the Underwriter and in form and substance
satisfactory to the Underwriter and Underwriter's Counsel.
(g) Subsequent to the execution and delivery of this Agreement or, if
earlier, the dates as of which information is given in the Registration
Statement (exclusive of any amendment thereof) and the Prospectus and through
the Closing, there shall not have been any material change in the capital stock
(except pursuant to the Company's dividend reinvestment plan, as in effect on
the date hereof, or the exercise of vested options), or long-term debt of the
Company or any of the Subsidiaries or any change or development involving a
change, whether or not arising from transactions in the ordinary course of
business, in the business, condition (financial or otherwise), results of
operations, stockholders' equity, properties, affairs or prospects of the
Company and the Subsidiaries, taken as a whole, including but not limited to the
occurrence of any fire, flood, explosion or other calamity at any of the
properties owned or leased by the Company or any of its Subsidiaries, the effect
of which, in any such case described above, is, in the reasonable judgment of
the Underwriter, so material and adverse as to make it impracticable or
inadvisable to proceed with the Offering on the terms and in the manner
contemplated in the Prospectus (exclusive of any supplement).
(h) Prior to the Closing Date, the Shares shall have been approved for
listing, subject to official notice of issuance, on the Exchange.
(i) Subsequent to the execution and delivery of this Agreement (i) no
downgrading or adverse change shall have occurred in the rating accorded any
security of the Company by any "nationally recognized statistical rating
organization," as that term is defined by the Commission for purposes of Rule
436(g)(2) of the Securities Act Rules and Regulations and (ii) no such
organization shall have publicly announced that it has under surveillance or
review, with possible negative implications, its rating of any security of the
Company, that, in either event, makes it impractical or inadvisable, in the
Underwriter's judgment, to offer or deliver the Shares on the terms and in the
manner contemplated in the Prospectus.
(j) Prior to the Closing Date, the Company shall have obtained for the
benefit of the Underwriter the agreement (a "Lock-Up Agreement"), in the form
set forth as Annex B hereto, of each of its [trustees] and executive officers;
(k) The Company shall have furnished the Underwriter and Underwriter's
Counsel with such other certificates, opinions or other documents as they may
have reasonably requested.
If any of the conditions specified in this Section 6 shall not have
been fulfilled when and as required by this Agreement, or if any of the
certificates, opinions, written statements or letters furnished to you or to
Underwriter's Counsel pursuant to this Section 6 shall not be satisfactory in
form and substance to the Underwriter and to Underwriter's Counsel, acting
reasonably, all obligations of the Underwriter hereunder may be cancelled by the
Underwriter at, or at any time prior to, the Closing Date and the obligations of
the Underwriter to purchase the Additional Shares may be cancelled by the
Underwriter at, or at any time prior to, the Additional Closing Date. Notice of
such cancellation shall be given to the Company in writing, or by telephone. Any
such telephone notice shall be confirmed promptly thereafter in writing.
7. Indemnification.
(a) The Company shall indemnify and hold harmless the Underwriter and
each person, if any, who controls the Underwriter within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act, against any and all
losses, liabilities, claims, damages and expenses whatsoever as incurred
(including but not limited to attorneys' fees and any and all expenses
whatsoever incurred in investigating, preparing or defending against any
litigation, commenced or threatened, or any claim whatsoever, and any and all
amounts paid in settlement of any claim or litigation), joint or several, to
which they or any of them may become subject under the Securities Act, the
Exchange Act or otherwise, insofar as such losses, liabilities, claims, damages
or expenses (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement, as originally filed or any amendment thereof, or any
related Preliminary Prospectus or the Prospectus, or in any supplement thereto
or amendment thereof, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided, however, that
the Company will not be liable in any such case to the extent but only to the
extent that any such loss, liability, claim, damage or expense arises out of or
is based upon any such untrue statement or alleged untrue statement or omission
or alleged omission made therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of the Underwriter
expressly for use therein. The parties agree that such information provided by
or on behalf of the Underwriter consists solely of the material referred to in
the last sentence of Section 1 (b) hereof. This indemnity agreement will be in
addition to any liability which the Company may otherwise have, including but
not limited to other liability under this Agreement.
(b) The Underwriter shall indemnify and hold harmless the Company,
each of the directors of the Company, each of the trustees of the Company who
shall have signed the Registration Statement, and each other person, if any, who
controls the Company within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act, against any losses, liabilities, claims, damages
and expenses whatsoever as incurred (including but not limited to attorneys'
fees and any and all expenses whatsoever incurred in investigating, preparing or
defending against any litigation, commenced or threatened, or any claim
whatsoever, and any and all amounts paid in settlement of any claim or
litigation), joint or several, to which they or any of them may become subject
under the Securities Act, the Exchange Act or otherwise, insofar as such losses,
liabilities, claims, damages or expenses (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, as originally filed or
any amendment thereof, or any related Preliminary Prospectus or the Prospectus,
or in any amendment thereof or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
in each case to the extent, but only to the extent, that any such loss,
liability, claim, damage or expense arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or alleged omission
made therein in reliance upon and in conformity with information furnished in
writing to the Company by or on behalf of the Underwriter specifically for use
therein; provided, however, that in no case shall any Underwriter be liable or
responsible for any amount in excess of the underwriting discount applicable to
the Shares to be purchased by such Underwriter hereunder. This indemnity will be
in addition to any liability which the Underwriter may otherwise have, including
but not limited to other liability under this Agreement. The parties acknowledge
and agree that such information provided on or on behalf of the Underwriter
consists solely of the material referred to in the last sentence of Section 1
(b) hereof.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of any claims or the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify each party against whom
indemnification is to be sought in writing of the claim or the commencement
thereof, but the failure so to notify an indemnifying party shall not relieve
the indemnifying party from any liability which it may have under this Section
7. In case any such claim or action is brought against any indemnified party,
and it notifies an indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate, at its own expense in the
defense of such action, and to the extent it may elect by written notice
delivered to the indemnified party promptly after receiving the aforesaid notice
from such indemnified party, to assume the defense thereof with counsel
satisfactory to such indemnified party; provided however, that counsel to the
indemnifying party shall not (except with the written consent of the indemnified
party) also be counsel to the indemnified party. Notwithstanding the foregoing,
the indemnified party or parties shall have the right to employ its or their own
counsel in any such case, but the fees and expenses of such counsel shall be at
the expense of such indemnified party or parties unless (i) the employment of
such counsel shall have been authorized in writing by one of the indemnifying
parties in connection with the defense of such action, (ii) the indemnifying
parties shall not have employed counsel to have charge of the defense of such
action within a reasonable time after notice of commencement of the action,
(iii) the indemnifying party does not diligently defend the action after
assumption of the defense, or (iv) such indemnified party or parties shall have
reasonably concluded that there may be defenses available to it or them which
are different from or additional to those available to one or all of the
indemnifying parties (in which case the indemnifying parties shall not have the
right to direct the defense of such action on behalf of the indemnified party or
parties), in any of which events such fees and expenses shall be borne by the
indemnifying parties. No indemnifying party shall, without the prior written
consent of the indemnified parties, effect any settlement or compromise of, or
consent to the entry of judgment with respect to, any pending or threatened
claim, investigation, action or proceeding in respect of which indemnity or
contribution may be or could have been sought by an indemnified party under this
Section 7 or Section 8 hereof (whether or not the indemnified party is an actual
or potential party thereto), unless (x) such settlement, compromise or judgment
(i) includes an unconditional release of the indemnified party from all
liability arising out of such claim, investigation, action or proceeding and
(ii) does not include a statement as to or an admission of fault, culpability or
any failure to act, by or on behalf of the indemnified party, and (y) the
indemnifying party confirms in writing its indemnification obligations hereunder
with respect to such settlement, compromise or judgment.
8. Contribution. In order to provide for contribution in circumstances in
which the indemnification provided for in Section 7 hereof is for any reason
held to be unavailable from any indemnifying party or is insufficient to hold
harmless a party indemnified thereunder, the Company and the Underwriter shall
contribute to the aggregate losses, claims, damages, liabilities and expenses of
the nature contemplated by such indemnification provision (including any
investigation, legal and other expenses incurred in connection with, and any
amount paid in settlement of, any action, suit or proceeding or any claims
asserted, but after deducting in the case of losses, claims, damages,
liabilities and expenses suffered by the Company any contribution received by
the Company from persons, other than the Underwriter, who may also be liable for
contribution, including persons who control the Company within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act, officers of
the Company who signed the Registration Statement and trustees of the Company)
as incurred to which the Company and the Underwriter may be subject, in such
proportions as is appropriate to reflect the relative benefits received by the
Company and the Underwriter from the Offering or, if such allocation is not
permitted by applicable law, in such proportion as are appropriate to reflect
not only the relative benefits referred to above but also the relative fault of
the Company and the Underwriter in connection with the statements or omissions
which resulted in such losses, claims, damages, liabilities or expenses, as well
as any other relevant equitable considerations. The relative benefits received
by the Company and the Underwriter shall be deemed to be in the same proportion
as (x) the total proceeds from the Offering (net of underwriting discounts and
commissions but before deducting expenses) received by the Company bears to (y)
the underwriting discount or commissions received by the Underwriter, in each
case as set forth in the table on the cover page of the Prospectus. The relative
fault of the Company and of the Underwriter shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company or the Underwriter and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company and the Underwriter agree that it would
not be just and equitable if contribution pursuant to this Section 8 were
determined by pro rata allocation (even if the Underwriter was treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this Section
8. The aggregate amount of losses, liabilities, claims, damages and expenses
incurred by an indemnified party and referred to above in this Section 8 shall
be deemed to include any legal or other expenses reasonably incurred by such
indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 8, (i) the Underwriter shall not
be required to contribute any amount in excess of the amount by which the total
price at which the Shares underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which the Underwriter
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission and (ii) no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this Section 8,
each person, if any, who controls the Underwriter within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act shall have the same
rights to contribution as the Underwriter, and each person, if any, who controls
the Company within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act, each officer of the Company who shall have signed the
Registration Statement and each trustee of the Company shall have the same
rights to contribution as the Company, subject in each case to clauses (i) and
(ii) of the immediately preceding sentence. Any party entitled to contribution
will, promptly after receipt of notice of commencement of any action, suit or
proceeding against such party in respect of which a claim for contribution may
be made against another party or parties, notify each party or parties from whom
contribution may be sought, but the omission to so notify such party or parties
shall not relieve the party or parties from whom contribution may be sought from
any obligation it or they may have under this Section 8 or otherwise.
9. [Intentionally left blank.]
10. Survival of Representations and Agreements. All representations and
warranties, covenants and agreements of the Underwriter and the Company
contained in this Agreement or in certificates of officers of the Company or any
Subsidiary submitted pursuant hereto, including the agreements contained in
Section 5, the indemnity agreements contained in Section 7 and the contribution
agreements contained in Section 8, shall remain operative and in full force and
effect regardless of any investigation made by or on behalf of the Underwriter
or any controlling person thereof or by or on behalf of the Company, any of its
officers and directors or any controlling person thereof, and shall survive
delivery of and payment for the Shares to and by the Underwriter. The
representations contained in Section 1 and the agreements contained in Sections
5, 7, 8, 10 and 11(d) hereof shall survive any termination of this Agreement,
including termination pursuant to Section 11 hereof.
11. Effective Date of Agreement; Termination.
(a) This Agreement shall become effective upon the execution of this
Agreement. Until this Agreement becomes effective as aforesaid, it may be
terminated by the Company by notifying you or by the Underwriter notifying the
Company. Notwithstanding any termination of this Agreement, the provisions of
this Section 11 and of Sections 1, 5, 7, 8 and 12 through 17, inclusive, shall
be in full force and effect at all times after the execution hereof.
(b) The Underwriter shall have the right to terminate this Agreement
at any time prior to the Closing Date or to terminate the obligations of the
Underwriter to purchase the Additional Shares at any time prior to the
Additional Closing Date, as the case may be, if (A) any domestic or
international event or act or occurrence has materially disrupted, or in the
opinion of the Underwriter will in the immediate future materially disrupt, the
market for the Company's securities or securities in general; or (B) if trading
on The New York Stock Exchange ("the Exchange") shall have been suspended or
been made subject to material limitations, or minimum or maximum prices for
trading shall have been fixed, or maximum ranges for prices for securities shall
have been required, on the Exchange or by order of the Commission or any other
governmental authority having jurisdiction; or (C) if a banking moratorium has
been declared by any state or federal authority or if any material disruption in
commercial banking or securities settlement or clearance services shall have
occurred; or (D) any downgrading shall have occurred in the Company's corporate
credit rating or the rating accorded the Company's debt securities or preferred
stock by any "nationally recognized statistical rating organization" (as defined
for purposes of Rule 436(g) under the Securities Act) or if any such
organization shall have publicly announced that it has under surveillance or
review, with possible negative implications, its rating of any of the Company's
debt securities; or (E) (i) if there shall have occurred any outbreak or
escalation of hostilities or acts of terrorism involving the United States or
there is a declaration of a national emergency or war by the United States or
(ii) if there shall have been any other calamity or crisis or any change in
political, financial or economic conditions if the effect of any such event in
(i) or (ii), in the judgment of the Underwriter, makes it impracticable or
inadvisable to proceed with the offering, sale and delivery of the Firm Shares
or the Additional Shares, as the case may be, on the terms and in the manner
contemplated by the Prospectus.
(c) Any notice of termination pursuant to this Section 11 shall be in
writing.
(d) If this Agreement shall be terminated pursuant to any of the
provisions hereof (other than pursuant to (i) notification by the Underwriter as
provided in Section 11(a) hereof), or if the sale of the Shares provided for
herein is not consummated because any condition to the obligations of the
Underwriter set forth herein is not satisfied or because of any refusal,
inability or failure on the part of the Company to perform any agreement herein
or comply with any provision hereof, the Company will, subject to demand by the
Underwriter, reimburse the Underwriter for all out-of-pocket expenses (including
the fees and expenses of their counsel), incurred by the Underwriter in
connection herewith.
12. Notices. All communications hereunder, except as may be otherwise
specifically provided herein, shall be in writing, and:
(a) if sent to the Underwriter, shall be mailed, delivered, or faxed
and confirmed in writing, to RBC Dain Rauscher Inc. at 1 Liberty Plaza, 165
Broadway, New York, New York 10006, attention of Mark Egert, with a copy to
Underwriter's Counsel at Clifford Chance US LLP, 200 Park Avenue, New York, New
York 10166, Attention: Bonnie Barsamian, Esq;
(b) if sent to the Company, shall be mailed, delivered, or faxed and
confirmed in writing to the Company and its counsel at the addresses set forth
in the Registration Statement, Attention: Chief Executive Officer;
13. Parties. This Agreement shall inure solely to the benefit of, and shall
be binding upon, the Underwriter and the Company and the controlling persons,
directors, officers, employees and agents referred to in Sections 7 and 8
hereof, and their respective successors and assigns, and no other person shall
have or be construed to have any legal or equitable right, remedy or claim under
or in respect of or by virtue of this Agreement or any provision herein
contained. This Agreement and all conditions and provisions hereof are intended
to be for the sole and exclusive benefit of the parties hereto and said
controlling persons and their respective successors, officers, directors, heirs
and legal representatives, and it is not for the benefit of any other person,
firm or corporation. The term "successors and assigns" shall not include a
purchaser, in its capacity as such, of Shares from the Underwriter.
14. Governing Law and Jurisdiction; Waiver of Jury Trial. THIS AGREEMENT
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK. The Company irrevocably (a) submits to the jurisdiction of any court
of the State of New York or the United State District Court for the Southern
District of the State of New York for the purpose of any suit, action, or other
proceeding arising out of this Agreement, or any of the agreements or
transactions contemplated by this Agreement, the Registration Statement and the
Prospectus (each, a "Proceeding"), (b) agrees that all claims in respect of any
Proceeding may be heard and determined in any such court, (c) waives, to the
fullest extent permitted by law, any immunity from jurisdiction of any such
court or from any legal process therein, (d) agrees not to commence any
Proceeding other than in such courts, and (e) waives, to the fullest extent
permitted by law, any claim that such Proceeding is brought in an inconvenient
forum. THE COMPANY (ON BEHALF OF ITSELF AND, TO THE FULLEST EXTENT PERMITTED BY
LAW, ON BEHALF OF ITS RESPECTIVE EQUITY HOLDERS AND CREDITORS) HEREBY WAIVES ANY
RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY CLAIM BASED UPON, ARISING
OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED BY
THIS AGREEMENT, THE REGISTRATION STATEMENT AND THE PROSPECTUS.
15. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same instrument. Delivery of
a signed counterpart of this Agreement by facsimile transmission shall
constitute valid and sufficient delivery thereof.
16. Headings. The headings herein are inserted for convenience of reference
only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
17. Time is of the Essence. Time shall be of the essence in this Agreement.
As used herein, the term "business day" shall mean any day when the Commission's
office in Washington, D.C. is open for business.
[signature page follows]
If the foregoing correctly sets forth your understanding, please so
indicate in the space provided below for that purpose, whereupon this letter
shall constitute a binding agreement among us.
Very truly yours,
ENTERTAINMENT PROPERTIES TRUST
By:
------------------------------
Name:
Title:
Accepted as of the date first above written
RBC DAIN RAUSCHER INC.
By:
------------------------------
Name:
Title:
EXHIBIT A
Subsidiaries
Wholly Owned Subsidiary Jurisdiction of Incorporation
- ----------------------------- -----------------------------
EPT DownREIT, Inc. Missouri
EPT DownREIT II, Inc. Missouri
3 Theatres, Inc. Missouri
Megaplex Holdings, Inc. Missouri
Megaplex Nine Inc. Missouri
Theater Sub Inc. Missouri
Megaplex Four Inc. Missouri
EPT Veterans Inc. Missouri
WestCol Holdings LLC Delaware
WestCol Corp. Delaware
WestCol Center LLC Delaware
WestCol Theatre LLC Delaware
Flik, Inc. Delaware
Flik Depositor, Inc. Delaware
Tampa Veterans 24, Inc. Delaware
Cantera 30, Inc. Delaware
EPT Water Park, Inc. Missouri
EPT Hialeah, Inc. Missouri
Not Wholly Owned subsidiary Jurisdiction of Incorporation
--------------------------- -----------------------------
EPT Gulf States LLC Delaware
(99% common membership interest)
30 West Pershing LLC Missouri
(100% owned by EPT Gulf States LLC)
Tampa Veterans 24, L.P. *Delaware (to be wholly-owned by
Atlantic - EPR II)
Cantera 30 Theatre, L.P. *Delaware (wholly-owned by
Atlantic - EPR I)
*Atlantic's interest may be exchanged for EPR shares or cash, at EPR's option.
ANNEX I
Form of Opinion of Company Counsel
(i) The Company is a real estate investment trust duly formed and
validly existing under and by virtue of the laws of the State of Maryland and is
in good standing with the State Department of Assessments and Taxation of
Maryland with full power and authority to own, lease and operate its properties
and conduct its business as described in the Registration Statement and
Prospectus. Each of the Company's subsidiaries is a corporation, limited
partnership or limited liability company, as the case may be, duly formed and
validly existing in its jurisdiction of organization and is in good standing in
its respective jurisdiction of organization with full power and authority to
own, lease and operate its properties and conduct the business in which it is
engaged. Each of the Company and its subsidiaries is duly qualified and in good
standing as a foreign corporation in each jurisdiction in which the character or
location of its properties (owned, leased or licensed) or the nature or conduct
of its business makes such qualification necessary, except for those failures to
be so qualified or in good standing which will not in the aggregate have a
Material Adverse Effect.
(ii) The Company has an authorized capitalization as set forth in the
Registration Statement and the Prospectus. All of the issued shares of capital
stock of the Company have been duly and validly authorized and issued, are fully
paid and non-assessable and are not now in violation of or subject to any
preemptive or, to the best of such counsel's knowledge, similar rights that
entitle or will entitle any person to acquire any Shares from the Company upon
issuance or sale thereof. The Shares to be delivered on the Closing Date and the
Additional Closing Date, if any, have been duly and validly authorized and, when
delivered in accordance with the Underwriting Agreement, will be duly and
validly issued, fully paid and non-assessable and will not have been issued in
violation of or subject to preemptive or, to the best of such counsel's
knowledge, similar rights that entitle or will entitle any person to acquire any
Shares from the Company upon issuance or sale thereof. All of the issued shares
of capital stock, partnership interests or membership interests, as the case may
be, of each subsidiary of the Company have been duly and validly authorized and
issued and are fully paid and non-assessable and are owned directly or
indirectly by the Company, free and clear of all liens, encumbrances, equities
or claims (other than pledges of the shares of certain subsidiaries to secure
indebtedness to lenders). The issued and outstanding common shares of the
Company, the preferred shares, the Shares and the Additional Shares conform to
the descriptions thereof contained in the Registration Statement and the
Prospectus. The form of certificate used to evidence the Shares is in due and
proper form and complies with all applicable statutory requirements, with any
applicable requirements of the Company's organizational documents and with the
requirements of the New York Stock Exchange ("NYSE").
(iii) The Common Shares currently outstanding are listed, and the
Shares to be sold under the Underwriting Agreement to the Underwriter are duly
authorized for listing on the NYSE.
(iv) The Underwriting Agreement has been duly and validly authorized,
executed and delivered by the Company and constitutes the legal, valid and
binding obligation of the Company, enforceable against the Company in accordance
with its terms subject to the qualification that the enforceability may be
limited by bankruptcy, fraudulent conveyance, insolvency, reorganization,
moratorium, and other laws relating to or affecting creditors' rights generally
and by general equitable principles.
(v) To the best of such counsel's knowledge, there is no litigation or
governmental or other proceeding or investigation, before any court or before or
by any public body or board pending or threatened against, or involving the
assets, properties or businesses of, the Company or any of its subsidiaries,
involving the Company's or any of its subsidiaries' officers or trustees or to
which any of the Company's or any of its subsidiaries' properties or other
assets are subject which might reasonably be expected to have a Material Adverse
Effect or to affect the consummation of the transactions contemplated herein or
the performance by the Company of its obligations hereunder.
(vi) The execution, delivery, and performance of the Underwriting
Agreement and the consummation of the transactions contemplated by Underwriting
Agreement, the Registration Statement and the Prospectus do not and will not (A)
conflict with or result in a breach of any of the terms and provisions of, or
constitute a default (or an event which with notice or lapse of time, or both,
would constitute a default) under, or result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of the Company or
any of its subsidiaries pursuant to, any indenture, mortgage, deed of trust,
loan agreement or any other agreement, instrument, franchise, license or permit
known to such counsel to which the Company or any of its subsidiaries is a party
or by which any of the Company or any of its subsidiaries or their respective
properties or assets may be bound or (B) violate or conflict with any provision
of the declaration of trust, certificate of incorporation, certificate of
limited partnership, articles of organization, by-laws or other organizational
documents, as the case may be, of the Company or any of its subsidiaries, or, to
the best knowledge of such counsel, any judgment, decree, order, statute, rule
or regulation of any court or any public, governmental or regulatory agency or
body having jurisdiction over the Company or any of its subsidiaries or any of
their respective properties or assets.
(vii) No consent, approval, authorization, order, registration,
filing, qualification, license or permit of or with any court or any public,
governmental, or regulatory agency or body having jurisdiction over the Company
or any of its subsidiaries or any of their respective properties or assets is
required for the execution, delivery and performance of this Agreement or the
consummation of the transactions contemplated by the Underwriting Agreement, the
Registration Statement and the Prospectus, except for (1) such as may be
required under state securities or Blue Sky laws in connection with the purchase
and distribution of the Shares by the Underwriter (as to which such counsel need
express no opinion) or (2) such as have been made or obtained under the
Securities Act.
(viii) The Registration Statement, the Preliminary Prospectus and the
Prospectus and any amendments thereof or supplements thereto (other than the
financial statements and schedules and other financial data included or
incorporated by reference therein, as to which no opinion need be rendered), at
the date of filing thereof with the Commission and at the Closing Time, complied
as to form in all material respects with the requirements of the Securities Act,
the Exchange Act and the Rules and Regulations. The documents filed under the
Exchange Act and incorporated by reference in the Registration Statement and the
Prospectus or any amendment thereof or supplement thereto (other than the
financial statements and schedules and other financial data included or
incorporated by reference therein, as to which no opinion need be rendered) when
they became effective or were filed with the Commission, as the case may be,
complied as to form in all material respects with the Securities Act or the
Exchange Act, as applicable, and the Rules and Regulations.
(ix) The statements under the captions "Risk Factors," "Federal Income
Tax Consequences," "Description of Securities," and "Underwriting" in the
Prospectus and Items 14 and 15 of Part II of the Registration Statement, insofar
as such statements constitute a summary of the legal matters, documents or
proceedings referred to therein, fairly present the information called for with
respect to such legal matters, documents and proceedings.
(x) The Company and its subsidiaries are not and, after giving effect
to the offering and sale of the Shares and the application of the proceeds
thereof as described in the Prospectus, will not be, an "investment company" as
such term is defined in the Investment Company Act of 1940, as amended.
(xi) The Registration Statement and all post-effective amendments, if
any, have become effective under the Act, and, to the best knowledge of such
counsel, no stop order suspending the effectiveness of the Registration
Statement or any post-effective amendment thereof has been issued and no
proceedings therefor have been initiated or threatened by the Commission and all
filings required by Rule 424(b) under the Securities Act have been made.
(xii) The Company has full right, power and authority to execute and
deliver the Underwriting Agreement and the Shares and to perform its obligations
thereunder, and all corporate action required to be taken for the due and proper
authorization, execution and delivery of the Underwriting Agreement and the
Shares and the consummation of the transactions contemplated by Underwriting
Agreement, the Registration Statement and the Prospectus and as described in the
Prospectus have been duly and validly taken.
(xiii) To the best knowledge of such counsel, there is no contract or
agreement of a character (1) to be filed under the Exchange Act if upon such
filing they would be incorporated by reference in the Registration Statement or
Prospectus or (2) to be filed as exhibits to the Registration Statement that are
not described and filed as required.
(xiv) Neither the Company nor any of its subsidiaries is in violation
of its respective declaration of trust, articles of incorporation, articles of
organization, certificate of limited partnership, by-laws or other
organizational document, as the case may be, and, to the best of such counsel's
knowledge after due inquiry, neither the Company nor any of its subsidiaries is
in default in the performance of any obligation, agreement, covenant or
condition contained in any indenture, loan agreement, mortgage, lease or other
agreement or instrument that is material to the Company and its subsidiaries,
taken as a whole, to which the Company or any of its subsidiaries is a party or
by which the Company or any of its subsidiaries or their respective property is
bound.
(xv) Neither the Company nor any of its subsidiaries has violated any
provisions of the Employee Retirement Income Security Act of 1974, as amended,
or any provisions of the Foreign Corrupt Practices Act, or the rules and
regulations promulgated thereunder, except for such violations which, singly or
in the aggregate, would not have a Material Adverse Effect.
(xvi) Each of the Company and its subsidiaries has such authorizations
of, and has made all filings with and notices to, all governmental or regulatory
authorities and self-regulatory organizations and all courts and other
tribunals, including, without limitation, under any applicable environmental
laws, as are necessary to own, lease, license and operate its respective
properties and to conduct its business, except where the failure to have any
such authorization or to make any such filing or notice would not, singly or in
the aggregate, have a Material Adverse Effect; each such authorization is valid
and in full force and effect and each of the Company and its subsidiaries is in
compliance with all the terms and conditions thereof and with the rules and
regulations of the authorities and governing bodies having jurisdiction with
respect thereto; and no event has occurred (including, without limitation, the
receipt of any notice from any authority or governing body) which allows or,
after notice or lapse of time or both, would allow, revocation, suspension or
termination of any such authorization or results or, after notice or lapse of
time or both, would result in any other impairment of the rights of the holder
of any such authorization; and such authorizations contain no restrictions that
are burdensome to the Company or any of its subsidiaries; except where such
failure to be valid and in full force and effect or to be in compliance, the
occurrence of any such event or the presence of any such restriction would not,
singly or in the aggregate, have a Material Adverse Effect.
(xvii) Except as disclosed in the Registration Statement and the
Prospectus, there is no outstanding option, warrant or other right calling for
the issuance of, and no commitment, plan or arrangement to issue, any shares of
capital stock of the Company, or any security convertible into, exercisable for,
or exchangeable for shares of capital stock in the Company. No holder of any
security of the Company has the right to have any security owned by such holder
included for registration in the Registration Statement or otherwise registered
by the Company under the Securities Act in connection with the issuance and sale
of the Shares.
(xviii) The descriptions in the Registration Statement and the
Prospectus of statutes, legal and governmental proceedings, contracts and other
documents, are accurate and fairly present the information required to be shown
in all material respects; and counsel does not know of statutes or legal or
governmental proceedings required to described in the prospectus that are not
described as required, or of any contracts or documents of a character required
to be described that are not described as required, in the Registration
Statement or Prospectus.
(xix) The Company has satisfied all of the conditions and requirements
for filing the Registration Statement on Form S-3.
(xx) Commencing with its taxable year ended December 31, 1997, the
Company has been organized in conformity with the requirements for qualification
and taxation as a REIT for federal income tax purposes, and, based on the facts
and assumptions set forth in the Prospectus and the representations by the
Company, set forth in an Officer's Certificate regarding certain federal income
tax matters, its method of operation has enabled it, and its proposed method of
operation will enable it to continue to meet the requirements under the Code for
qualification and taxation as a REIT, and the Company's partnership subsidiaries
and limited liability company subsidiaries will be treated for Federal income
tax purposes as partnerships (or as disregarded entities) and not as
associations taxable as corporations or as publicly-traded partnerships.
(xxi) To the best knowledge of such counsel, each of the Company and
its subsidiaries has filed on a timely basis all necessary federal, state, local
and foreign income and franchise tax returns through the date hereof, if any
such returns are required to be filed, and have paid all taxes shown as due
thereon; and no tax deficiency has been asserted against any such entity which,
if determined adversely to any such entity, could have a Material Adverse Effect
on the assets, operations, business or condition (financial or otherwise) of any
such entity, respectively.
In addition, such opinion shall also contain a statement that such
counsel has participated in conferences with officers and representatives of the
Company, representatives of the independent public accountants for the Company
and the Underwriter at which the contents and the Prospectus and related matters
were discussed and, no facts have come to the attention of such counsel which
would lead such counsel to believe that either the Registration Statement
(including the documents incorporated by reference therein), as of the date
hereof and at the time it became effective or any amendment thereof made prior
to the Closing Date, as of the date of such amendment, contained or incorporated
by reference any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus (including the documents
incorporated by reference therein), as of its date (or any amendment thereof or
supplement thereto made prior to the Closing Date as of the date of such
amendment or supplement) and as of the Closing Date, contained or contains an
untrue statement of a material fact or omitted or omits to state any material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading (it
being understood that such counsel need express no belief or opinion with
respect to the financial statements and schedules and other financial data
included or incorporated by reference therein).
Annex B
ENTERTAINMENT PROPERTIES TRUST
Common Shares
($ 0.01 Par Value)
September [ ], 2003
RBC Dain Rauscher Inc.
One Beacon Street- 6th Floor
Boston, MA 02108
Ladies and Gentlemen:
This Lock-Up Letter Agreement is being delivered to you in connection with
the Underwriting Agreement (the "Underwriting Agreement") entered into by
Entertainment Properties Trust (the "Company") and you, the Underwriter, with
respect to the public offering (the "Offering") of Common Shares, par value $
0.01 per share, of the Company (the "Common Stock").
The undersigned agrees that for a period of 90 days after the date of the
final prospectus relating to the Offering the undersigned will not, without your
prior written consent, (i) sell, offer to sell, contract or agree to sell,
hypothecate, pledge, grant any option to purchase or otherwise dispose of or
agree to dispose of, directly or indirectly, or file (or participate in the
filing of) a registration statement with the Securities and Exchange Commission
(the "Commission") in respect of, or establish or increase a put equivalent
position or liquidate or decrease a call equivalent position within the meaning
of Section 16 of the Securities Exchange Act of 1934, as amended, and the rules
and regulations of the Commission promulgated thereunder with respect to, any
Common Stock of the Company or any securities convertible into or exercisable or
exchangeable for Common Stock, or warrants or other rights to purchase Common
Stock, (ii) enter into any swap or other arrangement that transfers to another,
in whole or in part, any of the economic consequences of ownership of Common
Stock or any securities convertible into or exercisable or exchangeable for
Common Stock, or warrants or other rights to purchase Common Stock, whether any
such transaction is to be settled by delivery of Common Stock or such other
securities, in cash or otherwise, or (iii) publicly announce an intention to
effect any transaction specified in clause (i) or (ii). The foregoing sentence
shall not apply to (a) bona fide gifts, provided the recipient thereof agrees in
writing with you to be bound by the terms of this Lock-Up Letter Agreement or,
(b) dispositions to any trust for the direct or indirect benefit of the
undersigned and/or the immediate family of the undersigned, provided that such
trust agrees in writing with you to be bound by the terms of this Lock-Up Letter
Agreement or (c) dispositions pursuant to Rule 10(b)(5)-1 plans.
The undersigned further agrees that, for a period of 90 days after the date
of the final prospectus relating to the Offering, the undersigned will not,
without your prior written consent, make any demand for, or exercise any right
with respect to, the registration of Common Stock of the Company or any
securities convertible into or exercisable or exchangeable for Common Stock, or
warrants or other rights to purchase Common Stock.
If (i) the Company notifies you in writing that it does not intend to
proceed with the Offering, or (ii) for any reason the Underwriting Agreement
shall be terminated prior to the Closing Date (as defined in the Underwriting
Agreement), this Lock-Up Letter Agreement shall be terminated and the
undersigned shall be released from its obligations hereunder.
Yours very truly,
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Name: