Exhibit 10.9
ENTERTAINMENT PROPERTIES TRUST
and
COURTNEY SQUARE LIMITED PARTNERSHIP
WHITBY CENTRUM LIMITED PARTNERSHIP
OAKVILLE CENTRUM LIMITED PARTNERSHIP and
KANATA CENTRUM LIMITED PARTNERSHIP
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NOTE PURCHASE AGREEMENT
FEBRUARY 24, 2004
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TABLE OF CONTENTS
ARTICLE 1
DEFINITIONS
Section 1.1 Definitions..............................................2
ARTICLE 2
PURCHASE OF VENDORS' NOTES
Section 2.1 Purchase of Vendors' Notes in return for EPR Stock.......3
ARTICLE 3
NOTE PURCHASE PRICES IN EPR STOCK
Section 3.1 Courtney Square Limited Partnership......................3
Section 3.2 Kanata Centrum Limited Partnership.......................3
Section 3.3 Oakville Centrum Limited Partnership.....................3
Section 3.4 Whitby Centrum Limited Partnership.......................4
ARTICLE 4
COVENANTS
Section 4.1 Registration of EPR Stock................................4
ARTICLE 5
REPRESENTATIONS AND WARRANTIES
Section 5.1 Representations and Warranties of all Parties............4
Section 5.2 Representations and Warranties of the Vendors............4
Section 5.3 Survival of Representations and Warranties...............5
ARTICLE 6
GENERAL
Section 6.1 Amendments...............................................5
Section 6.2 Notices..................................................5
Section 6.3 Confidentiality..........................................6
Section 6.4 Waiver...................................................6
Section 6.5 Non Merger...............................................7
Section 6.6 Conflict.................................................7
Section 6.7 Successors and Assigns...................................7
Section 6.8 Interpretation...........................................7
Section 6.9 Schedules................................................7
Section 6.10 Headings.................................................7
Section 6.11 Severability.............................................7
Section 6.12 Entire Agreement.........................................8
Section 6.13 Non-Business Days........................................8
Section 6.14 Currency.................................................8
Section 6.15 Payments.................................................8
Section 6.16 Further Assurances.......................................8
Section 6.17 Time of Essence..........................................8
Section 6.18 Counterparts.............................................8
Section 6.19 Governing Law............................................9
SCHEDULES
SCHEDULE "A" -REGISTRATION RIGHTS AGREEMENT
NOTE PURCHASE AGREEMENT
THIS AGREEMENT is made as of the 24th day of February, 2004.
AMONG: ENTERTAINMENT PROPERTIES TRUST
("EPR")
AND: COURTNEY SQUARE LIMITED PARTNERSHIP
WHITBY CENTRUM LIMITED PARTNERSHIP
OAKVILLE CENTRUM LIMITED PARTNERSHIP and
KANATA CENTRUM LIMITED PARTNERSHIP
(the "VENDORS")
RECITALS:
(a) Pursuant to purchase agreements dated as of November 14, 2003 (the
"PURCHASE AGREEMENTS"), EPR North Trust (the "PURCHASER") has acquired
the Mississauga Property, the Kanata Property, the Oakville Property,
and the Whitby Property and certain related property and assets
constituting the Purchase Assets (all as defined in the Purchase
Agreements) from the Vendors;
(b) Part of the Purchase Price (as defined in the Purchase Agreements)
under each of the Purchase Agreements is to be paid by the issuance of
a promissory note (collectively, the "VENDORS' NOTES") made by the
Purchaser in favour of each Vendor;
(c) The Vendors' Notes are to be purchased by EPR in return for EPR Stock;
and
(d) EPR has agreed to issue the EPR Stock to the Vendors.
In consideration of the respective covenants, agreements, representations,
warranties and indemnities of the parties herein contained and for other good
and valuable consideration (the receipt and sufficiency of which are
acknowledged by each party), the parties agree as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.1 DEFINITIONS.
Unless the context otherwise requires, the terms defined in this Article 1
shall, for the purposes of this Agreement, have the meanings herein specified.
"AFFILIATE" means any Person that directly or indirectly controls, is
controlled by, or is under common control with, the Person in question. As
used in this definition, the term "control" means the possession, directly
or indirectly, of the power to direct or cause the direction of the
management and policies of a Person, whether through ownership of voting
securities, by contract or otherwise.
"AGREEMENT" means this Note Purchase Agreement together with all Schedules
hereto, as amended, modified, supplemented or restated from time to time.
"ANCILLARY AGREEMENTS" and "OTHER ANCILLARY AGREEMENTS" have the meanings
set forth in the Purchase Agreements.
"BUSINESS DAY" means any day other than a Saturday, Sunday or statutory
holiday in the Province of Ontario and the State of Missouri.
"CLOSING" means the closing of the sale of the Purchase Assets as defined
in the Purchase Agreements, anticipated to occur on February 24, 2004 or as
otherwise agreed among the parties to the Purchase Agreements and "CLOSING
DATE" means the date upon which the closing occurs.
"EPR" means Entertainment Properties Trust.
"EPR STOCK" means an amount of shares of common stock in the capital of
EPR, as determined in accordance with Article 3 hereof.
"PERSON" includes any individual, corporation, association, partnership
(general or limited), joint venture, trust, estate, limited liability
company, or other legal entity or organization.
"PURCHASE AGREEMENTS" means the agreements of purchase and sale dated as of
November 14, 2003 pursuant to which EPR North Trust agreed to acquire
certain real property, leases and personal property and pursuant to which
it was agreed that EPR would purchase the Vendors' Notes in exchange for
EPR Stock.
"REGISTRATION RIGHTS AGREEMENT" means the registration rights agreement in
the form attached as Schedule "A" to this Agreement between EPR and the
Vendors and dated as of the date hereof.
"VENDORS' NOTES" means the promissory notes to be issued by EPR North Trust
to the Vendors in accordance with the terms of the Purchase Agreements in
partial payment of the Purchase Price (as defined in the Purchase
Agreements and as provided in Section 3.5(1)(b) of each of the Purchase
Agreements) and to be transferred immediately after Closing to EPR in
exchange for the EPR Stock.
ARTICLE 2
PURCHASE OF VENDORS' NOTES
SECTION 2.1 PURCHASE OF VENDORS' NOTES IN RETURN FOR EPR STOCK.
Immediately following Closing, EPR agrees to purchase the Vendors' Notes
from the Vendors, and the Parties agree that the purchase price for such
Vendors' Notes shall be satisfied by the transfer of such amount of EPR Stock to
the Vendors as per the calculation set out in Article 3 below.
ARTICLE 3
NOTE PURCHASE PRICES IN EPR STOCK
SECTION 3.1 COURTNEY SQUARE LIMITED PARTNERSHIP.
The number of EPR Stock payable in relation to the purchase by EPR of the
Vendor Note payable to Courtney Square Limited Partnership shall be 140,805,
which has been calculated by dividing Cdn. $6,840,123 by the Canadian Dollar
equivalent of U.S. $36.25, using the exchange rate published as the noon rate by
the Bank of Canada on the day prior to the Closing Date.
SECTION 3.2 KANATA CENTRUM LIMITED PARTNERSHIP.
The number of EPR Stock payable in relation to the purchase by EPR of the
Vendor Note payable to Kanata Centrum Limited Partnership shall be 266,796,
which has been calculated by dividing Cdn. $12,960,587 by the Canadian Dollar
equivalent of U.S. $36.25, using the exchange rate published as the noon rate by
the Bank of Canada on the day prior to the Closing Date.
SECTION 3.3 OAKVILLE CENTRUM LIMITED PARTNERSHIP.
The number of EPR Stock payable in relation to the purchase by EPR of the
Vendor Note payable to Oakville Centrum Limited Partnership shall be 172,272,
which has been calculated by dividing Cdn. $8,368,708 by the Canadian Dollar
equivalent of U.S. $36.25, using the exchange rate published as the noon rate by
the Bank of Canada on the day prior to the Closing Date.
SECTION 3.4 WHITBY CENTRUM LIMITED PARTNERSHIP.
The number of EPR Stock payable in relation to the purchase by EPR of the
Vendor Note payable to Whitby Centrum Limited Partnership shall be 167,370,
which has been calculated by dividing Cdn. $8,130,582 by the Canadian Dollar
equivalent of U.S. $36.25, using the exchange rate published as the noon rate by
the Bank of Canada on the day prior to the Closing Date.
ARTICLE 4
COVENANTS
SECTION 4.1 REGISTRATION OF EPR STOCK.
In order that the EPR Stock may be freely traded after issuance, EPR shall
take the actions set out in the Registration Rights Agreement in respect of the
registration of the EPR Stock.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES
SECTION 5.1 REPRESENTATIONS AND WARRANTIES OF ALL PARTIES.
Each of the parties to this Agreement hereby represents and warrants as to
itself that on the date hereof: (i) it has the right, power and authority to
enter into this Agreement, and to perform its obligations hereunder; (ii) this
Agreement is a legal, valid and binding obligation of such party; (iii) the
execution, delivery and performance of this Agreement by such party does not
violate or conflict with any law, statute, ordinance, rule or regulation
applicable to such party or any material agreement, judgment, license, permit,
order or other document applicable to or binding upon such party or any of its
properties; and (iv) no consent, approval, authorization or order of any court
or governmental authority or third party is required with respect to such party
in connection with its execution, delivery and performance of this Agreement,
except for registration of the EPR Stock as contemplated by the Registration
Rights Agreement.
SECTION 5.2 REPRESENTATIONS AND WARRANTIES OF THE VENDORS.
(1) Each of the Vendors hereby represents and warrants to EPR that (i) the
Vendor (x) is acquiring the EPR Stock for the purpose of investment for its
own account and not with a view to or for sale in connection with any
distribution; (y) is an "accredited investor" as defined in Ontario
Securities Commission Rule 45-501 or that the distribution of the EPR Stock
to the Vendor is otherwise exempt from the prospectus and registration
requirements under the SECURITIES ACT (Ontario) (the "OSA"); and (ii) that
no
such EPR Stock will be sold, transferred, hypothecated, or assigned by it
in contravention of applicable securities laws, including the OSA.
(2) Each of the Vendors hereby represents and warrants to EPR that (i) the
offering and sale of the EPR Stock was not made through an advertisement of
such EPR Stock in printed media of general and regular paid circulation,
radio or television or any other form of advertisement, and (ii) in making
its investment decision in respect of such EPR Stock, each Vendor agrees
that it was not provided with any document purporting to describe the
business and affairs of EPR.
SECTION 5.3 SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
The representations and warranties contained in this Agreement shall
survive the execution and delivery of this Agreement.
ARTICLE 6
GENERAL
SECTION 6.1 AMENDMENTS.
This Agreement may not be amended or modified except by an agreement in
writing executed by all Parties hereto.
SECTION 6.2 NOTICES.
Any notice, direction or other communication (collectively, "NOTICE") given
regarding the matters contemplated by this Agreement must be in writing and sent
by personal delivery or courier, addressed:
(a) in the case of EPR, addressed as follows:
Entertainment Properties Trust
Suite 201
30 Pershing Road
Kansas City, Missouri
USA
64108
Attention: David Brain, President and C.E.O.
with a copy to:
Stikeman Elliott LLP
5300 Commerce Court West
199 Bay Street
Toronto, Ontario M5L 1B9
Attention: Brenda Hebert
(b) in the case of the Vendors, addressed as follows:
c/o PenEquity Management Corporation
Suite 400
370 King Street West
Toronto, Ontario
M5V 1J9
Attention: David Johnston, President and C.E.O.
with a copy to:
Gardiner Roberts LLP
Scotia Plaza, Suite 3100
40 King Street West
Toronto, Ontario
M5H 3Y2
Attention: Robert K. Schwartz
Notice is effective if delivered personally or by courier, on the date of
delivery if it is a Business Day and the delivery was made prior to 4:00 p.m.
(local time in place of receipt) and otherwise on the next Business Day. A party
may change its address for service from time to time by providing a Notice in
accordance with the foregoing. Any subsequent Notice must be sent to the party
at its changed address. Any element of a party's address that is not
specifically changed in a Notice will be assumed not to be changed.
SECTION 6.3 CONFIDENTIALITY
The parties shall keep in strict confidence this Agreement and the
information regarding the transactions contemplated herein, in accordance with
the confidentiality provisions set forth in Section 12.9 of the Purchase
Agreements.
SECTION 6.4 WAIVER.
No waiver of any of the provisions of this Agreement will constitute a
waiver of any other provision (whether or not similar). No waiver will be
binding unless executed in writing by the party to be bound by the waiver. A
party's failure or delay in exercising any right under this Agreement will not
operate as a waiver of that right. A single or partial exercise of any right
will not preclude a party from any other or further exercise of that right or
the exercise of any other right it may have.
SECTION 6.5 NON MERGER.
Except as otherwise expressly provided in this Agreement, the covenants,
representations and warranties will not merge upon and will survive execution
and delivery of this Agreement, the Closing and, notwithstanding any execution
and delivery and any investigation made by or on behalf of any party, will
continue in full force and effect, subject to the terms of this Agreement.
Execution and delivery will not prejudice any right of a party against any other
party in respect of anything done or omitted under this Agreement or in respect
of any right to damages or other remedies, subject to the terms of this
Agreement.
SECTION 6.6 CONFLICT.
In the event of any conflict between the provisions of this Agreement and
the provisions of the Purchase Agreements, the provisions contained in this
Agreement shall prevail and the provisions of the Purchase Agreements shall be
deemed to be amended to the extent necessary to eliminate such conflict.
SECTION 6.7 SUCCESSORS AND ASSIGNS.
All of the covenants and agreements in this Agreement shall be binding upon
and enure to the benefit of the parties and be enforceable by the parties and
their respective successors and permitted assigns pursuant to the terms and
conditions of this Agreement. Neither this Agreement nor any of the rights or
obligations under this Agreement, including any right to payment, are assignable
or transferable by any of the Vendors.
SECTION 6.8 INTERPRETATION.
Throughout this Agreement and any amendment hereto, nouns, pronouns, and
verbs shall be construed as masculine, feminine, neuter, singular or plural,
whichever shall be applicable. All references herein to "ARTICLES", "SECTIONS"
and paragraphs shall refer to corresponding provisions of this Agreement.
SECTION 6.9 SCHEDULES
The Schedules attached to this Agreement shall constitute an integral part
of this Agreement.
SECTION 6.10 HEADINGS.
The headings in this Agreement are included for convenience and
identification only and are in no way intended to describe, interpret, define or
limit the scope, extent or intent of this Agreement or any provision hereof.
SECTION 6.11 SEVERABILITY.
If any provision of this Agreement is determined by an arbitrator or any
court of competent jurisdiction from which no appeal exists or is taken to be
illegal,
invalid or unenforceable, that provision will be severed from this Agreement and
the remaining provisions will remain in full force and effect.
SECTION 6.12 ENTIRE AGREEMENT.
This Agreement together with the Purchase Agreements and the Registration
Rights Agreement constitute the entire agreement between the Parties with
respect to the transactions contemplated in this Agreement and supersede all
prior agreements, understandings, negotiations and discussions, whether oral or
written, of the parties. There are no representations, warranties, covenants,
conditions or other agreements, express or implied, collateral, statutory or
otherwise, between the parties in connection with the subject matter of this
Agreement, except as specifically set forth in this Agreement, the Purchase
Agreements or the Registration Rights Agreement. The parties have not relied and
are not relying on any other information, discussion or understanding in
entering into and completing the transactions contemplated by this Agreement.
SECTION 6.13 NON-BUSINESS DAYS.
Whenever any payment to be made hereunder shall be stated to be due or any
action to be taken hereunder shall be stated to be required to be taken on a day
other than a Business Day, such payment shall be made or such action shall be
taken on the next Business Day thereafter.
SECTION 6.14 CURRENCY.
All references in this Agreement to dollars, unless otherwise specifically
indicated, are expressed in Canadian currency.
SECTION 6.15 PAYMENTS.
All payments to be made under this Agreement shall be made by way of bank
draft or certified cheque.
SECTION 6.16 FURTHER ASSURANCES.
Each of the parties shall execute all such further agreements, instruments,
assignments and other documents and shall do all such further acts and things as
may reasonably be required from time to time to give full force and effect to
this agreement.
SECTION 6.17 TIME OF ESSENCE.
Time shall be of the essence hereof.
SECTION 6.18 COUNTERPARTS.
This Agreement may be executed in any number of counterparts (including
counterparts by facsimile), each of which shall be deemed to be an original and
all of which taken together shall be deemed to constitute one and the same
instrument.
Counterparts may be executed either in original or faxed form and the parties
adopt any signatures received by a receiving fax machine as the original
signatures of the parties.
SECTION 6.19 GOVERNING LAW.
This Agreement and the rights of the parties hereunder shall be interpreted
in accordance with the laws of the Province of Ontario and the federal laws of
Canada applicable therein, and all rights and remedies shall be governed by such
laws without regard to principles of conflicts of laws.
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IN WITNESS WHEREOF the parties have executed this Agreement.
ENTERTAINMENT PROPERTIES
TRUST
By:
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KANATA CENTRUM LIMITED COURTNEY SQUARE LIMITED
PARTNERSHIP, BY ITS GENERAL PARTNERSHIP, BY ITS GENERAL
PARTNER, PENEX KANATA LTD. PARTNER COURTNEY SQUARE LTD.
By: By:
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Name: Name:
OAKVILLE CENTRUM LIMITED WHITBY CENTRUM LIMITED
PARTNERSHIP, BY ITS GENERAL PARTNERSHIP, BY ITS GENERAL
PARTNER, PENEX WINSTON LTD. PARTNER, PENEX WHITBY LTD.
By: By:
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Name: Name:
SCHEDULE "A"
REGISTRATION RIGHTS AGREEMENT